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 http://www.archive.org/details/cu31924024889655 
 
STATEMENT 
 
 OF THE 
 
 COMMISSIONER OF CORPORATIONS 
 
 IN ANSWER TO 
 
 THE ALLEGATIONS OF THE STANDARD OIL COMPANY 
 
 CONCERNING 
 
 ITS CONVICTION AT CHICAGO FOR- ACCEPTING CONCESSIONS 
 ON SHIPMENTS OVER THE CHICAGO & ALTON RAILROAD 
 
 A DISCUSSION OP THE ALLEGATIONS IN THE PAMPHLET 
 ENTITLED "FROM THE DIRECTORS OF THE STANDARD 
 OIL COMPANY TO ITS EMPLOYEES AND STOCKHOLDERS" 
 
 DECEMiBBR 30, 1907 
 
 WASHINGTON 
 GOVERNMENT PRINTING OFFICE 
 
 1907 
 
* Depahtment of Commerce and Laboe, 
 
 Office of the Secretary, 
 Washington, October 9, 1907. 
 SiK : I desire to call your attention to a certain printed pamphlet, 
 ^herewith inclosed, which has been sent to this Department, entitled 
 " From the Directors of the Standard Oil Company to its Employees 
 and Stockholders." 
 
 This pamphlet, particularly the statement of Mr. James A. Moffett 
 therein, as you will observe, attempts to throw doubt on the merits of 
 the recent conviction of the Standard Oil Company of Indiana at 
 Chicago for accepting illegal railway concessions. 
 
 Inasmuch as the illegal rate involved in this case, as well as numer- 
 ous other railway discriminations in favor of the Standard, were 
 originally discovered by the Bureau of Corporations and exposed by 
 its report to the President in May, 1906, and inasmuch, also, as the 
 Bureau of Corporations took a large part in the preparation and -trial 
 of this case, indicating the sources of evidence and mainly securing 
 the same, I desire from you a full statement upon the allegations of 
 the said pamphlet. 
 
 Very respectfully, Oscar S. Straus, 
 
 Secretary. 
 The Commissioner of Corporations. 
 
 Department of Commerce and Labor, 
 
 Bureau of Corporations, 
 
 Washington, October 11, 1907. 
 Sir : Replying to your letter of the 9th instant, inclosing a copy of 
 the pamphlet issued by the Standard Oil Company, I submit here- 
 with a statement upon the allegations contained in said pamphlet. 
 Very respectfully, 
 
 Herbert Knox Smith, 
 
 Commissioner. 
 The Secretary of Commerce and Labor. 
 
 (3) 
 
STATEMENT IN ANSWER TO THE ALLEGATIONS OF THE STAND- 
 ARD OIL COMPANY REGARDING ITS CONVICTION AT CHICAGO. 
 
 On August 3, 1907, at Chicago, the Standard Oil Company of 
 Indiana was fined $29,240,000 for the violation of the Elkins anti- 
 rebate law. This was the so-called "Alton case." Various state- 
 ments have since appeared, one in particular signed by the president 
 of that company, James A. Moffett, others in the public press, and 
 also a series of confidential circular " trade letters," all endeavoring 
 to throw doubt on the legality and equity of that conviction. 
 
 The report of the Commissioner of Corporations on the Transporta- 
 tion of Petroleum, published in May, 1906, on which this and all 
 other pending rebate indictments of the Standard (except one) were 
 based, set forth in detail the deliberate, long-continued conduct on 
 the part of the Standard in violating the antirebate laws. But these 
 recent statements have made it necessary to show once more that the 
 transactions which form the basis of this conviction at Chicago were 
 such as struck at the very life and spirit of the Elkins antirebate law 
 and of the policy of Congress in forbidding unfairness as betAveen 
 shippers. 
 
 The question in this case was one of a published 18-cent rate to 
 East St. Louis, as against a secret 6-oent rate. The oil shipments 
 involved in this so-called "Alton " conviction started from 'Wliiting, 
 Ind., the great refinery of the Standard near Chicago, and were deliv- 
 ered at St. Louis, Mo., or at East St. Louis, 111., just across the river 
 from St. Louis, by the Chicago and Alton Eailroad. They covered 
 a period from September 1, 1903, to March 1, 1905. 
 
 The law requires that all interstate railway rates be filed with the 
 Interstate Commerce Commission. During this entire time there 
 was on file with the Interstate Commerce Commission a joint " tariff " 
 or rate sheet to which the Alton road was a party, showing that the 
 rate on fifth-class freight from AVhiting and Chicago to East St. 
 Louis was 18 cents per hundred pounds. Fifth-class freight includes 
 petroleum oil. This joint tariff was a large printed document dis- 
 tributed to many shippers of all sorts of freight. 
 
 During the time so stated, 1,462 cars of oil were carried from Whit- 
 ing, Ind., to East St. Louis over the Alton road for the Standard Oil 
 Company at the rate of 6 cents per hundred pounds, just one-third of 
 the said published rate. This same secret 6-cent rate had been used by 
 
 (5) 
 
the Standard Oil Company, and by no one else, for many years prior 
 to this period. It was not filed with the Interstate Commerce Cona- 
 mission, and was absolutely secret and unknown to independent oil 
 refiners, or to shippers generally. 
 
 The said statement of James A. Moffett uses the following remark- 
 able language: 
 
 It must be borne in mind that there is no question of rebate or discrimination 
 in this case. 
 
 Whether it was a "rebate" or not is a mere question of words. 
 Apparently the position of Mr. Moffett is that if he had actually 
 paid the Alton railroad 18 cents per hundred pounds and received 
 back 12 cents, so as to make a net rate of 6 cents, this would have been 
 a " rebate." But that because the lawful rate was 18 cents and his 
 company only paid 6, and the balance (12 cents) never physically 
 passed back and forth between his company and the Alton railroad, 
 although the result was exactly the same, it was not a "rebate." This 
 statement is simply an evasion. 
 
 The other proposition of Mr. Moffett is that there was "no dis- 
 crimination in this case." Apparently his position is that, because no 
 one else is known to have paid the published 18-cent rate from Whit- 
 ing to East St. Louis while his company was paying 6 cents, therefore 
 there was no discrimination. On the contrary, this very situation 
 proves that not only was there discrimination, but that this discrimi- 
 nation had worked out its logical result, so that no one else could ship 
 at 18 cents in competition with the Standard's 6-cent rate. Precisely 
 this, and other secret discriminations in shipments from Whiting, 
 produced that complete state of monopoly in the vicinity of Chicago 
 which the Standard now calmly designates as "absence of discrimi- 
 nation." 
 
 This 6-cent Alton rate was a "rebate" in essence, if not in form, 
 and both in essence and in form it was a discrimination of the most 
 severe and successful type. 
 
 The Standard Oil Company of Indiana has tried to excuse its use 
 of the 6-cent rate on two grounds. It admits that the 6-cent rate over 
 the Alton railroad was never filed with the Interstate Commerce 
 Commission, as the law required. But the Standard tries to remedy 
 this fatal defect by referring to a certain "application sheet," which 
 was on file with the Commission. This sheet merely stated that the 
 rates from Chicago should apply also from Whiting, enumerated the 
 tariffs referred to by it, and named specifically the tariff containing 
 the 18-cent oil rate; but it made no mention of the unfiled "Special 
 Billing Order" containing the 6-cent rate, nor did it give any infor- 
 mation as to any 6-cent rate on oil. Of course, this sort of thing was 
 absolutely no notice to anyone of the unpublished 6-cent rate, nor was 
 it intended to be. 
 
But the chief ground upon which the Standard defends itself is 
 the so-called " Chicago and Eastern Illinois rate." The claim is that 
 while the shipments of oil were going on at 6 cents over the Alton 
 railroad there existed at the same time over the Chicago and Eastern 
 Illinois Railroad a rate of 6^ cents from Whiting to East St. Louis. 
 The Standard claims that this GJ-cent rate was a legal rate, and 
 that therefore, inasmuch as the Standard could have shipped all its 
 oil at this alleged legal rate over the Chicago and Eastern Illinois, 
 it was justified in accepting a like rate over the Alton, and thus that 
 even if these shipments over the Alton were technically illegal there 
 was no moral wrong about them. 
 
 So far from this " Chicago and Eastern Illinois rate " being a 
 justification for the Alton shipments, it was an additional wrong in 
 itself. The Chicago and Eastern Illinois rate was quite as secret as 
 the Alton rate and was merely one more instance of the ingenious 
 and deliberate attempts of the Standard to evade, or violate with im- 
 punity, the whole spirit of the antidiscrimination law. 
 
 The facts as to this " justifying " rate are as follows : In October, 
 1895, the Chicago and Eastern Illinois Railroad filed with the Inter- 
 state Commerce Commission a single mineograph sheet stating that 
 the rate on oil from Dolton, 111., to East St. Louis was 6^ cents per 
 hundred pounds. There is no evidence that this sheet was ever dis- 
 tributed to any shipper except the Standard Oil Company. 
 
 This rate read " from Dolton," not from Whiting or Chicago. . A 
 note, however, indicated that it might also be used from ^Vhiting. 
 But no independent shipper who wanted to ship oil from Chicago or 
 Whiting to East St. Louis or St. Louis would ever think of looking 
 for a rate from Dolton. Dolton is a village of about 1,500 popula- 
 tion just outside of .Chicago. Its only claim to note is that it has 
 been for many years the point of origin for this and similar secret 
 rates. Concealment is the only motive for such a circuitous arrange- 
 ment. Such was the obscure origin and character of this " justify- 
 ing " rate. 
 
 Furthermore, about four years later, in May, 1899, the Chicago 
 and Eastern Illinois Railroad still further concealed the existence of 
 this already obscure Dolton rate by issuing and filing the same con- 
 spicuous 18-cent tariff, already mentioned, to which the Alton was 
 also a partj^ This 18-cent tariff was the only oil rate on the Chicago 
 and Eastern Illinois which could ever come to the notice of the ordi- 
 nary shipper. Thus during this period the only justification for the 
 Standard's claim that there was a legal 6|-cent rate over the^Chicago 
 and Eastern Illinois lies in this inconspicuous mimeograph sheet 
 of 1895 which read from Dolton, which was concealed further by a 
 conspicuous 18-cent rate, and which was never distributed or made 
 public. And, as a matter of fact, no other shipper knew of any 6 or 
 
8 
 
 6J cent rate. Although such knowledge would have been very im- 
 portant in mitigation of the fine, the Standard made no attempt to 
 prove such knowledge in the trial of the Chicago case. 
 
 Mr. MofFett, however, in his said statement was unfortunate enough 
 to make the claim that "thousands of tons of freight have been 
 shipped from these points during the last fifteen years under the 
 same circumstances as the Standard shipments." 
 
 The grand jury, on instructions from Judge Landis, thereupon 
 summoned Mr. Moffett before it, and reported to Judge Landis on 
 October 4, in part, as follows : 
 
 He [Mr. Moffett] was also unable to give to the grand jury information as to 
 the shipment at a single pound of freight except by the Standard Oil Company 
 from the points in question at a rate less than the lawfully published and filed 
 rate. 
 
 This remarkable admission by Mr. Moffett shows the general value 
 of his defense. He further admitted that his "statement" was largely 
 prepared by his attorney, Mr. Moritz Rosenthal. 
 
 These facts of themselves refute completely the attempted justifica- 
 tion of the Alton rate by means of the Chicago and Eastern Illinois 
 6i-cent rate, and show that one was as secret as the other. 
 
 But still more significant was the conduct of the railroads and the 
 Standard in the manner of handling the 6-cent rate over both rail- 
 roads. The Standard claims that there was nothing secret about the 
 rate. But every waybill for oil shipped over the Alton under this 
 rate was "falsely billed" — that is, the waybills showed on their face 
 a rate of 18 cents, with the freight charge in each case computed on 
 the waybill at that rate, although the actual freight charge collected 
 from the Standard was at the rate of 6 cents. In the contemporaneous 
 shipments of the Standard over the Chicago And Eastern Illinois 
 road every waybill for such shipments was disguised by another 
 scheme, to wit, by being " blind billed" — that is, no rate at all was 
 entered on the waybill until the said waybill reached the general 
 offices of the railroad. The first scheme of "false billing" required 
 the falsification of accounts to make them balance. The second scheme 
 of "blind billing" entirely concealed the rate. Both schemes had the 
 intended result of keeping the local freight agent and others outside 
 the general office in ignorance of what the actual rate was, and thereby 
 lessening the chance for outsiders to learn of this discrimination in 
 favor of the Standard. Such falsifying and blind billing is the clear- 
 est proof that there was something illegal. Is any other explanation 
 possible? In the vast multitude of waybills examined by the agents 
 of the Bureau of Corporations in the offices of the railroads centering 
 at Chicago no such use of "false billing" or "blind billing" was found 
 in regard to any oil shipments except in connection with the 6-cent 
 
9 
 
 rate from Chicago to East St. Louis and with two other illegal rates 
 on oil made by this same Chicago and Eastern Illinois Railroad. 
 
 Furthermore, the usual method of collecting freight charges is 
 through the local freight agents. All the collections for oil shipped 
 from Whiting to East St. Louis, both over the Alton and the Chicago 
 and Eastern Illinois, were made directly through the general offices. 
 This also was, of course, to prevent any general knowledge of the 
 rate. 
 
 Why were these unique and elaborate measures of concealment 
 taken if the rates were lawful ? 
 
 The grand jury, in the report above mentioned, refer to this point 
 also as follows: 
 
 The representatives of the Chicago and Alton Railway Company stated to the 
 grand jury that the case of the Standard Oil Company was the only one where 
 the tarifC naming the rate collected had not been regularly sent to the local 
 freight agent, and that so far as they knew, this was the only case in which 
 shipments had been made at a rate less than that named in the lawful tarifC. 
 
 The officers of both these railroads admitted that this 6-cent rate 
 was secret. One phrased it as " semiprivate." 
 
 The Standard has made also the ingenuous claim that its carefully 
 organized freight-traffic department, certainly one of the best in the 
 country, supposed this rate was legal, and that it had no knowledge 
 that the Alton kept the rate secret. The Standard knew that the 
 method of collecting the freight charges, both by the Alton and the 
 Chicago and Eastern Illinois, was altogether exceptional; that it 
 was employed only in connection with this East St. Louis rate and 
 with two other similar rates over the Chicago and Eastern Illinois. 
 On the very face of several of the semimonthly bills rendered by the 
 Alton to the Standard at the illegal 6-cent rate there appeared writ- 
 ten evidence that the oil was being waybilled at 18 cents, so that the 
 Standard had notice thereby of the " false billing," even if it had not 
 been perfectly cognizant of it otherwise. Moreover, the only possible 
 motive for that secrecy which the railroads admit that they main- 
 tained regarding this rate was to conceal it from competitors of the 
 Standard, and it is inconceivable that the Standard should not have 
 known of the practices which inured solely to its advantage. 
 
 Bearing also on such professed ignorance, a series of interesting 
 memoranda were found by the agents of the Bureau of Corporations 
 in the files of this very Chicago and Eastern Illinois Railroad, which 
 memoranda have been quoted in full on pages 270 to 273 of the report 
 of the Commissioner of Corporations on the Transportation of Petro- 
 leum, in May, 1906. These prove that the Standard knew every de- 
 tail of the issuance of another contemporaneous illegal rate from 
 Whiting via Grand Junction over this road ; that the traffic manager 
 of the Standard initiated it, dictated it to the railroads, and arranged 
 
10 
 
 for its secrecy by frequent consultations with the highest officers of 
 the road. 
 
 Taking a still broader view of the situation at the time these 
 Whiting-St. Louis rates were discovered, it is absolutely impossible 
 to impute to the freight traffic department of the Standard either 
 ignorance or innocence as to any essential facts in relation to the rail- 
 way rates on oil. There was set forth in the said report on Trans- 
 portation of Petroleum rates especially favoring the Standard, either 
 absolutely secret and illegal, or if technically legal still preferential 
 and unfair, covering a large part of the United States. There were 
 the secret and illegal rates to a large part of the South via Grand 
 Junction, Tenn. ; similar secret illegal rates from "Wliiting to Evans- 
 ville, Ind., on which large shipments to the South Avere made; a secret 
 rate combination from St. Louis into Louisiana — upon all of which 
 rates indictments are now pending against the Standard ; secret rates 
 from the Standard's refinery at Olean, iS^. Y., into Vermont, upon 
 which the Xew York Central and Hudson River Railroad has already ' 
 been convicted and the Standard indicted, and various secret rates 
 elsewhere. 
 
 These rates were all exposed by this Bureau in May, 1906. Within 
 three months after that date every such rate criticised by the Bureau 
 as illegal had been canceled by the railroads making the said rates. 
 This voluntary action of the railroads themselves more than justified 
 the conclusion of the Bureau that there had been in existence for a 
 long time a system of railway discriminations in favor of the Stand- 
 ard Oil Company in almost every section of the country. 
 
 Considerations like these become highly material when the Stand- 
 ard Oil Company appeals, as it has, from a question of strict legality 
 to a question of equity and good faith, and claims that in this specific 
 case, though it may have been technically guilty, nevertheless it was 
 morally innocent. As Judge Landis remarked, in imposing the fine, 
 this was by no means " its virgin offense." 
 
 This Alton rate, therefore, was substantially a rebate ; was the most 
 effective kind of discrimination, because it killed out all competition ; 
 was secret and was concealed by secret methods; is sought to be justi- 
 fied only by another like .secret rate which also was covered by secret 
 methods; was only one of a great system of discriminatory rates 
 practically covering the country (which the railroads dared not main- 
 tain in the light of publicity), and in its ingenuity, secrecy, and com- 
 plete effectiveness constitutes as extreme a violation of both the letter 
 and spirit of the antirebate laws as could well be imagined. 
 
 Mr. Moffett also refers, by way of justification, to certain other 
 rates on peas, beans, and popcorn, 8 cents ; linseed oil, "8 cents, and 
 others, as showing the reasonableness of the 6-cent oil rate. The 
 " reasonableness " of this rate is not in question. The question is 
 
11 
 
 whether this rate constituted a discrimination as against other ship- 
 pers of oil. Oil refiners in Chicago and elsewhere were not vitally 
 concerned in the rates on popcorn. 
 
 The Standard undersold competitors in the great Southwest by 
 means of this 6-cent rate to the St. Louis gateway, and, having 
 undersold them and driven them out of that territory, it then raised 
 prices to a monopoly figure, so that its marketing concern there was 
 making over 690 per cent on its capital stock in 1904, and for a long 
 series of years had been making profits extortionately high. These 
 profits were thus based on this secret discrimination which had been 
 in existence over fifteen years. The enjoyment of this discrimi- 
 natory rate was well worth many millions of dollars to the Standard, 
 and most emphatically justified the imposition of a great fine when 
 that rate was finally discovered and conviction was secured thereon. 
 
 O 
 
FROM THE DIRECTORS 
 
 OF THE 
 
 STANDARD OIL COMPANY 
 
 TO ITS EMPLOYEES AND 
 STOCKHOLDERS 
 
FROM THE DIRECTORS 
 
 OF THE 
 
 Standard Oil Company 
 
 TO ITS EMPLOYEES AND 
 STOCKHOLDERS 
 
 AUGUST, 1907 
 
A WORD IN ADVANCE. 
 
 The Directors of the Standard Oil Company, in printing this 
 pamphlet, desire to emphasize for the half million of people direct- 
 ly interested in its welfare the assurance of the Company's abso- 
 lute innocence of wrongdoing in any of the prosecutions lately in- 
 stituted against it in the Federal Courts. Particularly is this so 
 in the recent Chicago & Alton R. R. case, made notorious by the 
 sensational fine of $29,240,000 imposed on the Standard Oil Com- 
 pany of Indiana. 
 
 It should be known as widely as possible that this is no case 
 of rebate or discrimination, but simply of the legality of a freight 
 rate. It should be known that the verdict was obtained by the 
 Government upon the most hair-splitting technicality, aided .by the 
 rigorous exclusion of evidence that would have removed all pre- 
 sumption of guilt. 
 
 If the judgment in question be allowed to stand the Com- 
 pany will be forced to pay $20,000 (that is, fifty times the value ► 
 of the oil) for every carload carried over the Alton Road during 
 two years at an open 6 cent rate — a rate used over three com- 
 peting railroads for from ten to fourteen years ! The trial judge 
 refused to allow proof that the 6 cent rate had been filed by the 
 Chicago & Eastern Illinois, and was, therefore, a "legal rate." 
 He refused to allow proof that linseed oil, for instance, was carried 
 at 8 cents, and other bulk commodities as low as 5 cents. He 
 insisted that 18 cents was the only legal rate for oil when no one 
 had ever pai4 it, and when it was authoritatively sworn that it did 
 not apply to oil. 
 
 The case has been taken on appeal to the higher courts to 
 which we must look for that calm judgment which will rescue the 
 rights of the citizen from the field of public clamor and from the 
 domain of vindictive politics. 
 
 So persistent and adroit has been the warfare waged with all 
 the overpowering authority of the Federal Adrninistration against 
 the Standard Oil Company, that it has been manifestly difficult 
 
to get a fair hearing before the public or in a large portion of the 
 press, the latter, to its great harm, swayed alike by socialistic 
 outcry from below and political pressure from above. ^ 
 
 As proof of the latter it may be noted that in the' President's 
 message of May 4, 1906, attack was made on the Standard Oil 
 Company for the purpose of forcing the passage of the bill re-' 
 mitting the duty on denatured alcohol — a measure in which the 
 Company was not interested. On May 17, 1906, the issue of 
 Commissioner Garfield's report on Petroleum Transportation, a 
 tissue of old misrepresentations, was timed to influence the Hep- 
 burn Rate Bill then before Congress. "On May 20, 1907, while 
 Judge Landis had still under consideration the judgment in the 
 Chicago & Alton case, Commissioner Smith's illogical and partisan 
 report on Pipe Lines was made public. The Commissioner's sec- 
 ond report on Petroleum Prices and Profits — a wholly false de- 
 duction from incomplete facts — was sent in advance to the press 
 for publication on August 5 in the knowledge that Judge Landis 
 would pronounce judgment on August 3. Here surely is evidence 
 of a combination influencing all sources of public opinion, disturb- 
 ing^ the orderly dispensation of justice, sanctioning in advance 
 and supporting when made, the most sensational opinions and 
 judgments hostile to the Company. 
 
 What motive underlies the campaign of defamation need not 
 here be discussed, but for all, friends and foes, it is reiterated that 
 the Standard Oil Company is carrying on a widespread business of 
 great moment to the prosperity of the American people in abso- 
 lute obedience to the soimdest principles of business and to the 
 spirit and letter of the law. Attacks upon it of the kind described 
 are aimed at the nation's industrial and mercantile life. 
 
 It is encouraging, amid the fury of the hour, which assails so 
 many corporations, all organized industry and all wealth, to know 
 that scores of editors through the country, on examination of the 
 facts, have forcibly and clearly expressed their opinion that the 
 greatest wrong has been done to the Standard Oil Company. 
 Following their example, it is sincerely hoped that editors who 
 have passed hasty judgment on the Company will also examine 
 the facts and reach just conclusions. That our friends may know 
 more fully how the truly independent are tlpholding right and 
 honesty, a few editorial comments afe appended, following Mr. 
 Moffett's public statement ©n the Altdii case. Each one of the ar- 
 ticles and extracts will repay reading. 
 
STATEMENT OF JAMES A. MOFFETT, PRESIDENT, 
 STANDARD OIL COMPANY, OF INDIANA. 
 
 The Court having pronounced its judgment in the case of the 
 United States vs. Standard Oil Company, of Indiana, there can 
 now be no impropriety in stating our position to the American 
 people. 
 
 The facts in this case are simple and easily understood. The 
 Standard Oil Company, of Indiana, was convicted of receiving 
 what the Government claimed was a concession from the Chicago 
 & Alton in the shipment of oil from its refinery at Whiting, In- 
 diana, to East St. Louis, Illinois. It must be borne in mind that 
 there is no question of rebate or discrimination in this case. The 
 contention of the Government was that the lawful rate was i8 
 cents per one hundred pounds between these two points. The de- 
 fendant claims : First, that the lawful rate was 6 cents ; and, sec- 
 ondly, if 6 cents was not the la\'^ful rate it was the rate issued 
 to the Standard by the Alton as the lawful rate, and the Standard 
 was justified in believing from its own investigation and from the 
 information received frOm the Railroad Company that 6 cents 
 was the lawful rate. 
 
 The i8-cent rate was a "class" and not a "commodity" rate, 
 and the chairman of the Chicago & St. Louis Traffic Association, 
 the association issuing the i8 cent class rate, under oath testified 
 that it was never applied and was never intended to apply to oil. 
 
 The period of time covered by the indictment in this case 
 was from September ist, 1903, to March ist, 1905. The rate on 
 oil between Chicago and East St. Louis over the Alton for four- 
 teen years, from 1891 to 1905, was always 6 cents per one hundred 
 pounds. This was an open published rate known to everyone 
 concerned in the shipment of oil and generally known in all rail- 
 road circles in Chicago. Both Chicago and East St. Louis being 
 in Illinois, the railroad company was under no legal obligation to 
 file this rate with the Interstate Commerce Commission at Wash- 
 ington, but Whiting, being in Indiana, shipments from Whiting 
 to East St. Louis were technically, at least, interstate and hence 
 the Alton filed with the Interstate Commerce Commission what 
 is known as an "application sheet" applying to Whiting the Chica- 
 go rate, and deemed the filing of the application sheet all that was 
 necessary under the law. 
 
 For over thirty years, by custom, all of the little industrial 
 towns grouped about Chicago, and which are in reality an essen- 
 tial part of Chicago and go to make up its industrial strength, 
 have been given the same freight rates as Chicago. The rea- 
 son for this is, of course, apparent, and it is because of this uni- 
 formity of freight rates that Chicago as the center of this group 
 is to-day a city of over two millions of inhabitants. If Whiting, 
 Pullman, Hegewisch and South Chicago did not get the same 
 freight rates as Chicago, manufacturing establishments in these 
 towns would be compelled to close their doors. Because of this 
 condition and situation railroads created what is known as the 
 Chicago Switching District, which includes Whiting and all 
 of these other little manufacturing towns in and around Chicago. 
 These towns are further unified by a belt line railroad which en- 
 circles Chicago and connects this entire industrial system with 
 the trunk lines radiating from Chicago. 
 
 Thousands of tons of freight have been shipped from these 
 
points during the past fifteen years under the same circum- 
 stances as the Standard shipments, and if the Standard is guilty in 
 this case, so is practically every other shipper in this great manu- 
 facturing territory. Is there a purpose in selecting the Standard 
 as the victim ? 
 
 The Chicago & Eastern Illinois Railroad also runs between 
 Whiting and East St. Louis. The Standard Oil Company ship- 
 ped about ofte-third of all the oil that went from Whiting to 
 East St. Louis over the Eastern Illinois, the other two-thirds 
 going over the Alton and the Burlington. On the trial of the 
 case the defendant offered to show by witnesses who were on 
 the stand that not only during the period of time covered by the 
 indictment, but continuously from 1895, ^^^- Eastern Illinois had 
 a lawful published and filed rate between Whiting and East St. 
 Louis on oil of 6 cents per one hundred pounds and that the 
 Standard Oil Company shipped at such rate over the Eastern 
 Illinois more than two thousand cars of oil each year during 
 said period. To this offer the Government through its attorneys 
 strenuously objected and the Court sustained the objection. The 
 defendant contended, and still does contend, that this proof would 
 have conclusively shown that the Standard Oil Company had no 
 possible motive in shipping over the Alton, and thereby violating 
 the law, when it might just as readily and conveniently have 
 shipped all of its oil over the Eastern Illinois and not have vio- 
 lated any law. 
 
 The defendant also offered to prove that packing house pro- 
 ducts, during the same period of time, were carried between these 
 same points under a "commodity" rate for 10 cents; malt, 7 
 cents ; brick, 5 cents ; cornmeal, 7 cents ; resin, 6/^ cents ; starch, 
 8 cents ; peas, beans and popcorn, 8 cents ; linseed oil in tank 
 cars, 8 cents ; glycerine, 6 cents. The Court again sustained 
 the objections of Government counsel and thus again prohibited 
 us from showing the jury how absurd was the Government's 
 claim that the rate, for example, on linseed oil was 8 cents, while 
 on petroleum oil it was 18 cents. 
 
 Under such circumstances, and in view of the fact that pe- 
 troleum had been openly carried over the three roads from Whit- 
 ing to East St. Louis for from ten to fourteen years for- 6 cents, 
 what a draft it is on human credulity for the prosecution to as- 
 sert that 18 cents was the only possible lawful rate! 
 
 The uncontradicted evidence also showed that the Standard 
 Oil Company was advised by the Rate Clerk of the Chicago & 
 Alton that this 6 cent rate was filed with the Interstate Commerce 
 Commission. 
 
 Knowing that the rate on the Eastern Illinois was but 6 
 cents ; having no reason for shipping over the Alton in preference 
 to the Eastern Illinois, and able to ship all of its oil over the lat- 
 ter road, we insist that the facts, many of which the Court did not 
 permit us to show, not alone demonstrate innocence but inher- 
 ently forbid the idea of guilt". 
 
 We further insist that whatever may be one's technical 
 view of the law relating to the above question, every equitable 
 consideration is with the defendant, and if the only desire was to 
 give this defendant a "square deal" this prosecution would never 
 have been instituted. 
 
 The American public not only believes in fair play in the 
 abstract, but, with all the facts before it, it has the capacity to 
 
determine whether a defendant, rich or poor, has received a 
 "square deal." 
 
 For all these reasons the Standard Oil Company asserts that 
 it is not even technically guilty and that it ought never to have 
 been prosecuted because of the claimed failure of -a railroad 
 coinpany — which has neither been indicted . nor prosecuted— to 
 file its tariff, and that the prosecution of this defendant under 
 the circumstances of this case is a prostitution of the spirit and 
 the high purpose of the Interstate Commerce Act. 
 
 THE HOUR OF SENSATION IN "LAW." 
 
 [From the Brooklyn, N. Y., Daily Eagle, August 3, 1907.] 
 
 The fines which Judge Kenesaw Mountain Landis to-day im- 
 posed on the officials of the Standard Oil Company, in Chicago, 
 amount to over $29,000,000. It should be borne in mind that this 
 sentence will be reviewed by the courts above Landis, up to and 
 through the Supreme Court of the United States. There should 
 be a reservation. of confidence that this sentence will stand, until it 
 shall have been passed upon by all the higher tribunals, and es- 
 pecially by the tribunal of last resort. 
 
 This suggestion is not made for any other purpose than the 
 legitimate and almost invariably vindicated one of deprecating 
 sensationalism, especially sensationalism in law, since that hap- 
 pens to be, as a rule, the very form of sensationalism upon which 
 calming courts, especially the highest court, take almost an ad- 
 mitted pleasure in sitting down. 
 
 Very eminent jurists in the states of New England and in 
 the Middle States have unofficially, but candidly, said that the pre- 
 emptory summons of the Standard officials into the court, in 
 Chicago, to answer as to their resources or as to thei'r responsi- 
 bility for ofifenses charged, was absolutely novel, questionably con- 
 stitutional and will almost certainly be made on appeal of no eflfect. 
 
 To-day, however, is not the hour of reasoning. It is the hour 
 of sensation, of excitement and of "applause." To-morrow, or' 
 soon after, will come the hour of reflection, of review and of "the 
 sober second thought" of instituted and of impartial law. None 
 need be "sorry" for the Standard Oil Company. Its lawyers as- 
 sure that company it need not even be "sorry" for itself. But 
 those who would discriminate the probable from the improbable, 
 the likely from the unlikely, the usual from the unusual, should at 
 least discountthis sensational sentence, until it shall have been re- 
 viewed by tribunals of greater responsibility, of greater learning 
 and of greater estate in public opinion. 
 
 The Standard may deserve all it has received. But it has 
 been arraigned under the law, and by law it must stand or fall. 
 One of the incidents, or rather one of the . rights, to which it 
 is entitled under the law is appeal from lower courts to higher, 
 and from the higher courts to the highest. This - process 
 of appeal to law upon points ot law and upon prin- 
 ciples of law will proceed in due course, and will require quite 
 probably at least two years for completion. We advise our readers 
 calmly to await the orderly completion of the course provided and 
 prescribed, in the full confidence that eventually reason will take 
 the place of excitement, learning of impulse, equity of agitation, 
 usage of iiovelty, and that at the last the country will be satisfied 
 
with the result reached, a result which neither "Yellowism in jour- 
 nalism" nor "Yellowism" on the part of the inferior judiciary will 
 be in anywise able to alter or deflect. 
 
 UNSUSTAINED BY lAW OR JUSTICE. 
 
 {From the New York Times, August 5, 1907.] 
 
 The imposing of a fine of $29,240,000 upon the Standard 
 Oil Company of Indiana by Judge Landis is a matter of profound 
 psychologic interest. Undoubtedly it is of judicial and legal inter- 
 est as well. But we think the first inquiry will be, What could 
 have been going on in the mind of the court when it was making 
 up to inflict this astounding penalty ? It cannot be assumed that 
 Judge Landis wished to make the law ridiculous by applying it 
 in all its unconscionable rigor. The judicial mind is not supposed 
 to operate in that way. The theory that the ill-repute of the 
 Standard Oil corporation as an octopus, its defiant attitude toward 
 restraining laws, or its behavior as defendant in the court, stirred 
 the Judge to a pitch of vindictive passion that prompted the im- 
 posing of this huge fine is equally untenable. 
 
 We do not for a moment suppose that Judge Landis expects 
 this fine to be collected and the money paid in to the United States 
 Government; nor even that he expects his action in imposmg it 
 to be sustained by the courts above. The Elkins Anti-Rebate act 
 is a just and proper statute, though it may be objected that the 
 maximum penalty of $20,000 fine for each oftense is excessive 
 and unnecessary. The aim of statutes of this nature is to punish 
 offenses committed in the past, and by deterrent penalties to pre- 
 vent the comrnission of like offenses in the future. It is only in 
 capital cases that .the law seeks the annihilation of the offender. 
 Under the statutes regulating corporations destruction is not 
 aimed at, and, until Judge Landis spoke yesterday, has not been 
 attempted. Mere forfeiture of a charter would be.incomparably 
 less serious, as that would leave tangible assets unimpaired, and 
 reorganization under suitable assurances of good behavior would 
 be possible. No corporation, however, can pay fines like this 
 and continue to do business. The mmimum fine of $1,000 for 
 each offense, amounting to nearly a million and a half dollars, 
 would certainly have been punitive. Most persons, we presume 
 most Judges, would have thought it adequate. But no theory of 
 law or justice sustains such a thumping penalty as Judge Landis 
 has pronounced. 
 
 * We took occasion some time ago to observe that under the 
 Judge's ruling in this case the transportation of commodities in 
 inter-State commerce. would be attended with the gravest risk to 
 the shipper. The Judge ruled that the Standard Oil defendant 
 was bound to have kgowledge that the rate furnished to it by the 
 Chicago & Alton Road was, in fact, the lawful published rate, 
 and that this rate had been filed with the Inter- State Commerce 
 Commission. It appeared in evidence that the Standard Oil 
 Company was advised by the rate clerk of the Chicago & Alton 
 that this six-cent rate was filed with the Inter-State Commerce 
 Commission. The Judge ruled, however, that the eighteen-cent rate 
 was the lawfuPrate, and that the defendant was bound to know it. 
 How a shipper can do business in safety after this unless in each 
 transaction he personally informs himself by application to the 
 
Inter-State Commerce Commission in Washington that the rate 
 furnished him is the lawful published and filed rate, it is impossible 
 to see. A rate may be changed at any time on due notice to the 
 commission. How is the shipper to know that last week's rate 
 still prevails unless in each transaction he makes inquiry at Wash- 
 ington? Since the penalty of ignorance, ev.en of innocent igno- 
 rance, may be a fine of $20,000, he would feel compelled either to 
 consult the Commission before shipping his goods, or else go out 
 of business. In fact, such a construction of the law makes busi- 
 ness impossible. 
 
 It would be interesting to know on what ground Judge 
 Landis excluded testimony offered by the defendant to show that 
 during the time covered by the indictment the Eastern Illinois 
 Road "had a lawful published and filed rate between Whiting and 
 East St. Louis on oil of 6 cents per one hundred pounds, and that 
 the Standard Oil Company shipped at such rate over the Eastern 
 Illinois, more than 2,000 carloads of oil each year during said 
 period." This evidence has an important bearing upon the ques- 
 tion of motive. The oil company could lawfully have shipped its 
 oil at 6 cents over one road ; why should it accept an unlawful rate 
 from another road and thus run its neck into the noose that Judge 
 Landis has tightened with so firm a hand? 
 
 The grave interest and importance of the principle involved, 
 as well as the unexampled magnitude of the fine, insure the carry- 
 ing of the case to the Supreme Court. The decision of that tri- 
 bunal may be illuminating upon many points of law and policy 
 that now much occupy the public mind and the minds of corpora- 
 tion managers. 
 
 ^ A VmDICTIVE FINE. 
 
 [From the Pittsburg Gasette-Tivnes, August 4, 1907.] 
 
 While in the case of the Standard Oil Company at Chicago 
 it would have been ridiculous to ask or expect Judge Landis to 
 temper justice with- mercy, it is equally ridiculous that he should 
 have gone about his duty vindictively. The fine of $29,240,000 
 is beyond all reason. A fine is intended to serve a three-fold pur- 
 pose. It should be exemplary, and thus serve as a warning to 
 the defendant and to all others engaged in similar oflfending. It 
 should be of sufficient amount to operate as a punishment, as in 
 that way only can the defendant be impressed with the serious- 
 ness of his offence. It should fit the crime. "There is not any 
 means by which a given quantity of punishment can be rendered 
 more exemplary than by choosing it of such a sort as shall bear 
 an analogy to the offence." But a fine should not be confiscatory ; 
 it should not be made unduly heavy simply because the defendant 
 has the monpy to pay it, and, above all, it should not be vin- 
 dictively imposed, as by that course it is robbed of its moral effect 
 upon the community at large and thus defeats the real ends of 
 justice. 
 
 It may be granted that Judge Landis' actiori deals a stagger- 
 ing blow to corporation offenders and -that, win or lose in the 
 court of last resort, the Standard hereafter will be more scrup- 
 ulous in its conduct and have a keener appreciation of the law 
 and the courts. But that is not the only desideratum at this 
 time. The public wanted an example made of the Standard, not 
 a martyr. 
 
10 
 
 Here is where the piling up of more than $29,000,000 in. 
 fines is likely to defeat one of the chief purposes of the law. 
 Judge Landis would not have dealt so with an individual, no 
 matter what his financial ability. He would not have dealt so 
 with any other corporation. That he would have made the fine 
 substantial, adjusting it with "proper relation to the offence, is 
 doubtless true ; but that he would have multiplied it by the ex- 
 treme limit of the counts in the indictment, upon each count im- 
 posing the maximum penalty, is unbelievable. Hence, instead 
 of preserving the doctrine of the square deal, which he explicitly 
 professes to be following, unless we are very much mistaken he 
 has given it the worst blow on Record. 
 
 THE MANUFACTURE OF PREJUDICE. 
 
 [From the Providence Journal, August 6, 1907.] 
 
 Some of the com^ment on the penalty imposed in the Stand- 
 ard Oil cases betrays a suggestion of reaction of public senti- 
 ment, in view of the punitive character of the sentence, to the full 
 extent of the law. It is pointed out that like success in the 
 prosecution of indictments still to come, followed by an equal 
 measure of the law's vengeance, would result in putting the great 
 monopoly out of business ; while it is urged that Standard Oil is 
 not wholly without claim on public respect as a great business 
 institution that the American people on many accounts have 
 reason to be proud of. Is it, then, too elastic a stretch of fancy 
 to surmise that, because the Government anticipated the work- 
 ing of some such mingled emotions in the public heart and con- 
 science, the publication of the report of the Capimissioner of 
 Corporations on the petroleum industry, demonstrating the rela- 
 tions of Standard Oil to the consumer and how little reason the 
 latter has for indulging in a belated sentimentalism in a matter 
 of stiff business facts, was timed to a nicety with the sentence 
 of the Federal Court? 
 
 ALL THE ELEMENTS OF CRIME LACKING. 
 
 [From the New York Financial Chronicle, August 10, 1907.] 
 
 The whole sum and substance, therefore, of the Standard's of- 
 fending was that it did not satisfy itself that the six-cent rate 
 which it had paid for a long series of years to the different rail- 
 roads on shipments of oil from its refinery at Whiting, Ind., to 
 East St. Louis, 111., had in the -case of the Alton road been filed 
 by the carrier with the Inter- State Commerce Commission in such 
 a manner as to make it a legal and lawful rate. Failing com- 
 pliance with this requirement, the higher "class" rate (covering a 
 whole variety of articles and commodities) of 18 cents should 
 have been paid by the shipper. 
 y; Candidly speaking, the Standard Company has been con- 
 victed of a crime, and yet all the elements of a crime seem to be 
 lacking. What the Elkins Law, the Inter-State Commerce Law 
 and all the other laws on the Federal Statute books are directed 
 against is secret rebates and concessions. The thing abhorrent to 
 the statute is that one shipper should pay a high rate and another 
 
11 
 
 shipper should knowingly pay a lower rate, thus getting an ad- 
 vantage over his rival and competitor. In this case there was no 
 evidence to show that any shipments had ever been made at the 
 eighteen-cent rate, and the six-cent rate appears to have been 
 available to all shippers alike. The only question at issue is 
 whether, technically, the six-cent rate was a legal rate, since the 
 Alton Company had not properly placed it on file at Washington. 
 We are not anxious to pose as defenders of the Standard Oil Com- 
 pany, but from this review of the facts it must be evident that 
 there is at least grave doubt whether the law was actually violated, 
 and still graver doubt that the violation was intentional, thereby 
 constituting a crime was intended. Yet Judge Landis treats the 
 case as if it was one of the strongest ever presented in a court of 
 law and penalizes the concern in the prodigious sum of 
 $29,240,000. 
 
 STATE OWNERSHIP OF EVERYTHING. 
 
 [From the New York Herald, August 12, 1907.3 
 
 If Mr. Bonaparte, the Attorney General, has not been mis- 
 quoted he favors a policy big with menace for American industry 
 and commerce. After making the announcement that his depart- 
 ment would prosecute all lawbreakers — a somewhat unnecessary 
 announcement, for it is his business and duty to prosecute them — 
 he added that if the fine imposed on the Standard Oil Company 
 were upheld the government might "appoint a receiver to operate 
 the convicted trust." 
 
 The logical application of such amazing views would place 
 the State in control of all production and exchange — in other 
 words, of the commerce and industry of the entire country. A 
 charge brought against any company or corporation might re- 
 sult in the imposition of a crushing fine, and, finally, in the- ap- 
 pointment of an official receiver "to operate the convicted" com- 
 pany or corporation. The government, in fact, would be in a 
 P9sition to treat any erring industrial or commercial organization 
 as a bankrupt or would be able to force bankruptcy upon it and 
 take over its direction. Thus in a short space of time the Amer- 
 ican government may find itself operating railways, directing the 
 iron and steel "trusts," and making shoes, peddling petroleum and 
 dealing in underclothing and hosiery. 
 
 The creation of a socialistic state may not be the conscious 
 aim of the "muck rakers," but their efforts tend in that direction. 
 Reflective people, however, must wonder whether the moment has 
 not come to call a halt. Circumstances are combining to expose 
 the danger in the systematic baiting of "capital," the railing 
 against the "trusts," the vehement and ignorant denunciation of 
 "monopolies" and the incessant efforts of politicians to obtain 
 support by truckling to the passions of the envious and the idle. 
 
 Such a policy can only result in the dislocation of trade and 
 the restriction of industry. If the objects of those who are carry- 
 ing on the campaign were actually to ruin the small investor and 
 frighten away foreign capital they could not succeed more admir- 
 ably than they are doing. The slump in Wall street has been felt 
 painfully in thousands of homes, and foreign investors, in the 
 present circumstances, are not likely to come forward, 
 
12 
 MEKE FUTILE SENSATION. 
 
 [From the Denver, Colo., Post, August 5, 1907.] 
 
 Much as we would like to see the lawless acts of so-called 
 "predatory wealth" meet with effectual piinishment, we are 
 obliged to say, after reading the opinion of Judge Kenesaw Lan- 
 dis, fining the Standard Oil Company the gasping sum of $29,- 
 000,000, that it was a piece of judicial sensationalism that won't' 
 stand the test of the higher courts. * * * The opinion of 
 Judge Landis was labored and as full of holes as an imported 
 pheese. * * * jn principle, it amounted to the same thing as 
 ■ finding, in a case of assault and battery by some notorious ruiifian, 
 that fifty-three blows had been struck, and holding that each blow 
 constituted assault and battery, and multiplying the lawful pun- 
 ishment by the fifty-three blows. * * * Judge Landis, in his 
 opinion, indicated plainly that, inasmuch as the Standard Oil 
 Company was a trust, and it was "predatory" in its character, it 
 should be given the limit, on general principles, when an opening 
 was available through which to soak it. * * * It may be popular, 
 and Judge Landis has attained transient fame as the jurist who 
 levied the most gigantic fine in history, but it is not law. * * * 
 It may be justice, but it is not law, and the incident is a mere fu- 
 tile sensation. 
 
 THE FACTS IN THE CASE. 
 
 iFrom the Hartford, Conn., Daily Times, August 5, 1907.] 
 
 The publication at this time of another chapter of the serial 
 "report" which the administration at Washington is issuing in re- 
 lation to the business of the Standard Oil Company is not, it 
 may be safely assumed, accidental in its coincidence with the ac- 
 tion of Judge Landis at Chicago in assessing the company nearly 
 thirty million of dollars in fines for its alleged infraction of the 
 Elkins law against railroad rebates. The campaign against this 
 very rich and prosperous corporation is being carefully managed, 
 and the precision with which the blows are delivered is well calcu- 
 lated to make any politician shed tears who thinks that. attacks 
 on the trusts can be made a leading feature of lie democratic 
 presidential campaign next year — Mr. W. J. Bryan, for in- 
 stance. 
 
 The Washington report, an abstract of which is given else- 
 where, like the long g,ddress delivered at Chicago by Judge 
 Landis, on Saturday, bristles with evidence that the Standard 
 Oil Company has "made money." It is ostensibly the work of 
 Mr. Herbert Knox Smith, a young gentleman well known in 
 Hartford. Actually, we suppose, it is the production of James 
 R. Garfield, the secretary of the interior, who preceded Mr. Smith 
 at the head of the bureau of corporations, and who made the on- 
 slaught on this corporation the principal feature of his work in 
 that office. We notice that Mr. Garfield was heard from in Cali- 
 fornia yesterday, where he made a strong indorsement of Judge 
 Landis's action a feature of a public address. 
 
 This Chicago fine is worthy of a little attention. The facts 
 in the case are these. For many years past the rate on freight 
 carried in bulk from Chicago and its suburban railroad section to 
 East St. Louis has been about 6 cents per hundred pounds. On 
 packing house products the rate has been lo cents ; brick, 5 cents ; 
 corn meal, J7 cents ; majt, y cents, etc. The 6 cent rate for petro- 
 
13 
 
 leum prevailed on the Chicago and Eastern Illinois, Burlington, 
 and Chicago and Alton lines. The Standard Oil Company has 
 done most of its business over the Chicago and Eastern Illinois 
 line, having sent over 2,000 car loads of oil each year from Whit- 
 ing (its oil shipping point in the Chicago district) to St. Louis. 
 If it had sent all of its oil by that route it would not now be owing 
 Government this little item of $29,240,000. But some of the oil 
 traffic was given to the Chicago and Alton road, and here two 
 things are to be jjoted. The present owners and managers of 
 the Chicago, and Alton Company have been made the object 'of 
 severe arraignment by the Interstate Commerce Commission, be- 
 cause of certain financial operations, and the town of Whiting 
 is just over the Illinois line in Indiana, which makes the sending 
 of freight from that point to East St. Louis interstate business. 
 So the careful gentlemen at Washington who are engineering the 
 suit against the , Standard Oil Company brought action against 
 it for sending oil to East St. Louis over the Chicago & Alton 
 during the two years after the Elkins law went into effect, but 
 carefully refrained from suing the Company for sending its oil 
 over the other roads between the same points at the same time. 
 It appears that the Chicago & Eastern Illinois had a published 
 6-cent rate between the Chicago territory and East St. Louis, 
 while the Chicago & Alton had failed to file a specific tariff sheet, 
 although, as it is alleged, the Alton officers did file with the Inter- 
 state Commerce Commission what is known as an "application 
 sheet" applying to Whiting the Chicago rate, and deemed the 
 filing of the application sheet all that was necessary under the 
 law. 
 
 In the trial of the suit Judge Landis forbade the presentation 
 pf any testimony showing that the 6-cent rate was the open and 
 prevailing rate between the Chicago district and East St. Louis 
 during the whole period from 1891 until 1905, and excluded 
 every bit of evidence tending to show that any other rate than 
 the i8-cent late was a lawful rate during this time. He succeeded 
 in constructing a technical case against the Company which will 
 go to the Supreme Court where it is certain to be reviewed on 
 its merits. If the Standard Oil Company has violated any law 
 it should be dealt with by the Courts like any other transgressor, 
 but we are unable to see that in this case there has been any vio- 
 lation of law. 
 
 The announcement this morning that Judge Landis is named 
 as a candidate for the Republican nomination for Governor of 
 Illinois, and that there is a prospect that on the strength of his 
 fining the Standard Oil Company this huge sum he can probably 
 defeat Governor Deneen, comes as the natural and expected se- 
 quel of his proceeding in this case. The Judge is a member of a 
 family of politicians, most of ^whom are in public office. He has 
 been in office most of the time since he became of age. He was 
 private secretary to the late Mr. Gresham when that gentleman 
 was Secretary of State in Mr. Cleveland's cabinet and left the 
 department at Mr. Cleveland's demand. 
 
 PLAYING TO THE GALLERIES. 
 
 [From the Daily Mining Gazette, Houghton,. Mich., August 6, 1907.] 
 
 Judge Kenesaw Mountain Landis has been playing to the 
 galleries from the time the cases against the Standard Oil Com- 
 
14 
 
 pany were first brought to his Court. When he assessed the 
 Corporation a fine aggregating almost thirty miUions of dollars 
 he did a most foolish thing ever in the interests of the dear people, 
 because the very amount of the fine is enough to give the Su- 
 preme Court an opportunity to send the case back because the 
 punishment can easily be construed as unusual and cruel by a 
 court with any such inclination. Then again the Standard has 
 another loophole. Courts in interpreting laws usually seek to 
 figure out the intention of the legislative body which makes the 
 la^s. It may well be doubted if the Congress which passed the 
 law against rebates ever intended to have a thirty million dollar 
 fine imposed for the first conviction under the law. The law 
 fixes $20,000 as the maximum fine but by bunching the cases 
 Judge Landis has arranged an aggregate fine which is staggering 
 even in these days of immense wealth. And then again there is 
 a reasonable doubt as to the technical guilt of the big oil corpo- 
 ration even under the action upon which Judge Landis has found 
 it guilty. The Company got a 6-cent rate on its oil and the same. 
 rate was open for other companies as far as the Standard is con- 
 cerned. The tariff was posted everywhere, except with the Inter- 
 state Commerce Commission. But the Standard people assert, 
 and with some vehemence and justice, it seems to us, that they 
 should not be held for the negligence of the railroad company. 
 In other words if the shipper, in this case the Standard, is to be 
 held responsible for the proper tariff publications of the railroad 
 corporation with which it does business, theordinary shipper will 
 have little else to do in this world of business but look after the 
 duties of the railroads. 
 
 IMPOSSIBLE TO SHIPPERS. 
 
 [From the Rochester^ N. Y., Herald, August 5, 1907.] 
 
 The colossal fine imposed, the extreme limit provided by the 
 law, would only be in accordance with judicial precedent, if the 
 defendant company were now being convicted after previous re- 
 peated trial and conviction. The practice of criminal courts, the 
 world over, is to make the first sentence less than the full rigor 
 of the law. This rule is useful to the ends of practical justice, 
 leaving, as it does, something additional to be imposed upon crim- 
 inals who persist in their offenses after having once been brought 
 to punishment. In the present case there seems to be no excuse 
 for having departed from this precedent, except that the penalty 
 was presumed to be popular with the public. 
 
 In his rulings during the examination of the defendant 
 company. Judge Landis laid down certain novel rules for the 
 application of the law to all persons doing business with common 
 carriers. One which impresses us as being likely to lead to a 
 reversal of the whole proceeding, is that which prevented the 
 Standard Oil Company from showing that it paid a reduced 
 freight rate in good faith, supposing that it was the full legal 
 rate. Under such a ruling, if it be sound law, it becomes the 
 . duty of every shipper, not merely to learn the published rate 
 of the carrier, but to know that the rate thus published is the 
 legal rate. How such knowledge can possibly be had by ship- 
 pers, with absolute certainty, we fail to see. It would appear 
 possible that a shipper, innocent of all intent to break the law. 
 
15 
 
 might ship his goods at a rate illegally contrived by a railroad 
 company. Under Judge Landis' remarkable ruling, such a ship- 
 per would become liable to the maximum penalty for an act which 
 he supposed was in full obedience to the law. 
 
 We fear that the conviction of the Standard by such processes 
 may prove, upon examination by the Supreme Court of the 
 United States, to be no conviction at all. 
 
 AN IMPOSITION ON ITS FACE. 
 
 IFrom the Chattanooga, Term., News, August 5, 1907.] 
 
 The fine imposed on the Standard Oil Company by the Chi- 
 cago court is excessive, and an imposition on its face. 
 
 This thing of fining any corporation $29,000,000 and then 
 intimating that it will be fined $85,000,000 more in other cases 
 is going beyond the bounds of reason and common sgnse. 
 
 Sometimes a man is indicted "by a grand jury for violating 
 a criminal law a thousand times. If he is convicted on the first 
 indictment he is given what the court considers reasonable pun- 
 ishment for what he has been doing and there the case ends. He 
 is not, in a word, sentenced to the penitentiary for a thousand 
 years, or for a hundred, as for that, unless the crime is murder. 
 The Standard Oil Company seems to have violated the same law 
 several thousand times. The ends of justice would be met by 
 imposing a reasonable fine and then serving notice on the com- 
 pany that if the offense was repeated the maximum penalty would 
 be imposed in each case. 
 
 The whole truth, and nothing but the truth, is that this 
 country is going wild in its crusade against corporations. Com- 
 binations of capital should be regulated by law so that they will 
 not oppress the people, but confiscation of money or property b 
 not recoenized by our constitution or our ideas of government. 
 The order of the Chicago court is clearly an act of confiscation. 
 The ends of justice do not demand that thirty million dollars 01 
 the money of the Standard Oil Company be paid into qpurt tor 
 the violation of an anti-rebate law. Public policy does not call 
 for such a fine. We are of the opinion that the good sense and 
 spirit of fairness of the American people will revolt against the 
 decision of the Chicago court. 
 
 CIAPTRAP AND FARCE. 
 
 [From the Bellman, Minneapolis, Minn., August lo, 1907.] 
 
 Of course this journal should, as in duty bound, add its note 
 of satisfaction to the hysterical roar of applause with which the 
 practically unanimous press of the country has hailed the act of 
 Judge Landis in fining the Standard Oil Company the enormous 
 sum of twenty-nine millions, two hundred and forty thousand 
 dollars — and he might have added, in order to give due signifi- 
 cance to the verdict, thirty cents ; for the last named trifle would 
 seem to come nearer to the probable net return of his fine after 
 the case has been calmly passed upon by a higher court. 
 
 The offense of which the company was so glibly and easily 
 convicted, and so monstrously fined, was neither restraint of 
 trade, discrimination, attempt to create a monopoly nor con- 
 
18 
 
 spiracy to rob the consumer. Damage was done to nobody what- 
 ever; neither public nor private interests were harmed in the 
 slightest by the transactions specified in the indictment. 
 
 The offense of the company was in not insisting upon pay- 
 ing a ridiculous and obsolete rate of freight, three times the 
 charge made by other railroads. The omission of the Chicago 
 & Alton railway to amend its published rate to agree with the 
 • rate given and the neglect of the shipper to see that this omission 
 was rectified constituted the sum and substance of the techni- 
 cality upon which the Standard Oil Company was convicted. , 
 
 For this high crime and misdemeanor, which harmed no one 
 and was at the' most but a technical violation of law, the com- 
 pany was found guilty on more than fourteen hundred counts, 
 Judge Landis fined it the maximum penalty on each count and 
 the grand total of this amazing judgment was twenty-nine mil- 
 lions, two hundred and forty thousand dollars. 
 
 If this be justice, if it be ordinary common-sense, The Bell- 
 man is unable to see it. Such proceedings savor of claptrap and 
 farce and must suggest to the impartial observer the slap-stick 
 stage trial, arranged more for the purpose of satisfying the melo- 
 dramatic tastes of the audience than to serve the impartial ends 
 of justice. 
 
 THE GREATEST OUTRAGE. 
 
 IFrom the Atchison^ Kan., Daily Globe, Aagi^t s, 1907.] 
 
 Most people believe the fine of twenty-nme million dollars 
 imposed against the Standard Oil Company, last Saturday, by 
 Judge Landis, of the United States Court at Chicago, was for re- 
 bating. Most people also believe that the order of Judge Landis 
 was an act of long-delayed justice. But the president of the 
 Standard Oil Company makes a statement indicating clearly that 
 the question of rebating did not enter into the case at all, and 
 that the great fine was imposed to advance the political and Chat- 
 auqua interests of Judge Landis. Anyway, it will interest every 
 fair-minded man to read the statement of the case made by the 
 president of the Standard Oil Company. 
 
 If the above statement is true, and we cannot conceive of the 
 president of a great corporation going before the public with 
 falsehoods that may be easily controverted, it means : i. That in 
 this case, the Government's prosecution against the Standard Oil 
 Company was not in good faith. 2. That the question of rebating 
 did not enter into the case. 3. That the Standard Oil Company 
 was persecuted and not prosecuted for violation of law. 4. That 
 the decision of Judge Landis was an outrage, in reply to unreason- 
 able clamor against the trusts and railroads. 5. That the de- 
 cision is so unjust that it will not stand the test of the higher 
 courts, and that, finally, when the people understand it, the de- 
 cision will bring the people back to their senses. 
 
 According to the statement of Mr. Moffet, there has been, 
 for a period of twelve years, a rate of 6 cents a hundred pounds 
 on oil between Whiting, Ind., and East St. Louis, 111. This rate 
 was perfectly legal, so far as the Eastern Illinois was concerned, 
 but the Alton failed to comply with a provision of the law, and 
 file its amended tariff with the Inter-state Commerce Commission. 
 Some sleuth discovered this technical violation of law, and a suit 
 was started against the Standard Oil Company. The trial judge 
 
17 
 
 was unfair and unreasonable, and, when the oil company was 
 found guilty of a technical violation of law, by a jury, the judge 
 imposed the maximum fine on every shipment of oil proved. 
 
 But the reader should understand that the 6-cent rate was 
 perfectly legal on the Eastern Illinois, and that that road received 
 one-third of the oil company's business. The reader should also 
 understood that during the same period of twelve years there 
 has been an open commodity rate between Whiting, Ind., and 
 East St. Louis, of 8 cents per hundred pounds on linseed oil, and 
 5 cents a hundred pounds on brick. The reader should under- 
 stand, also, that no opposition oil company has been paying the 
 i8-cent rate which prevailed twelve years ago ; that, in this case, 
 according to Mr. Moffet's statement, there has been no rebating, 
 and no suspicion of rebating. 
 
 The great fine imposed by Judge Landis was imposed because 
 of a technical violation of law. As Mr. Moffet says, the 6-cent 
 rate was legal on the Eastern Illinois and his company could have 
 given that railroad company all his business, instead of one-third 
 of it, had he known that the Alton had failed to file its modified 
 tariff with the Interstate Commerce Commission. How absurd 
 it is to fine the Standard Company twenty-nine million dollars for 
 failure to pay an i8-cent rate when linseed oil was being shipped 
 at 8 cents, and brick at 5 cents ! 
 
 It is a curious instance of how strong public clamor is at 
 present. Not one newspaper in twenty will print the defense 
 of the oil company. People will continue to believe that at last 
 the Standard Oil Company has been brought to its knees, and re- 
 joicCj in spite of the fact, if Mr. Moffet's statement is true, that it 
 is the greatest outrage ever perpetrated in the courts of this 
 country. 
 
 THE TIME OF FRENZIED POLITICS. 
 
 [From Leslie's Weekly, August 15, 1907.] 
 
 If, as Judge Landis appears to hold, any shipper who ac- 
 cepts a rate from the agent of a railroad, without taking the pre- 
 caution to go or send to Washington and ascertain if that is the 
 rate legally filed with the Inter-state Commerce Commission, can 
 be indicted, found guilty, and sentenced to. pay a penalty of 
 $20,000 for every shipment, even if innocently made — then some- 
 thing is wrong with the law or with our courts of justice. Of 
 course, after having fixed the maximum penalty in the case of 
 the Standard Oil, Judge Landis cannot be expected to stultify 
 himself by fixing a lower penalty for any other offender who is 
 haled into his court, for he has established the precedent and must 
 abide by it. If he seeks refuge behind the allegation that the 
 Standard Oil Company should be heavily penalized because, since 
 its organization in 1872, covering a period of thirty-five years, 
 its profits have been more than $700,000,000, or at an average of 
 about $20,000,000 per annum, what sort of a penalty would he 
 inflict on a corporation like the United States Steel Corporation, 
 which, at its present rate of earnings, will make a profit of $700,- 
 000,000 in less than four years, or at the rate of nearly $200,000,- 
 000 a year ! 
 
 Not long ago it was the proudest boast of the American peo- 
 ple that our industries were surpassing in magnitude those of all 
 other nations. The prosperity of the United States has been 
 
18 
 
 great because of the prosperity of our industrial interests. The 
 Steel Corporation with its army of one hundred thousand em- 
 ployes, the Standard Oil with sixty thousand men on its industrial 
 pay-roll, exclusive of official and clerical staff, and all the lines 
 of manufacture-s which are thriving as they are in no other Coun- 
 try, and which are fighting valiantly for new markets at home and 
 abroad, are the principal factors in securing the wealth of the 
 American nation. The day will come when the sober' judgment of 
 mose who think for themselves, and who think in the light of ex- 
 periences both pleasant and bitter, who can recall other periods 
 of prosperity as well as periods of adversity and the "soup- 
 house," will look back upon this time of frenzied politics with 
 amazement and indignation. 
 
 VENOM AND BIAS. 
 
 tVtom the Rochester, N. X., Post Express, August s, 1907.] 
 
 Of course, tne standard will appeal from the conviction, and 
 from such reports of the court proceedings as have come over the 
 wire there seem to be good grounds for an appeal. Certainly it 
 has been many years since a Judge of a Federal Court has shown 
 the venom and bias that Judge Landis manifested during the trial 
 and in the delivery of judgment and the imposition of punish- 
 ment. Me is very young to serve in a case so important as this — 
 not yet 41 — he was not admitted to the bar till 1891 and he has 
 been on the bench only a little more than two years. He seems as 
 lacking in ability, in fairness, and in poise and dignity as He is in 
 experience, and it will be very surprising if the higher courts do 
 not find good grounds upon which to order a ne\v trial. 
 
 "A PRETTY HEAVY CURRENT RISK." 
 
 [From the Milwaukee Sentinel, August y, 1907.] 
 
 The sum and substance of the Chicago suit under the Elkins 
 Act was that the Standard had obtained from the Alton road a 
 private rate of 6 cents per loo pounds, >vhereas the legal and 
 filed rate was i8 cents. On the face of it, and assuming that 
 other shippers were paying the i8 cent rate, that would be a 
 gross discrimination in favor of the Standard, for which the 
 road was recouping itself at the expense of other shippers. 
 
 One specific question would at once occur to most readers 
 of Judge Landis' decision: Were other shippers of petroleum 
 paying the 18 cent rate, while the Standard paid the 6 cent rate? 
 No such contention appears; and it is sheer assumption to say 
 that had there been other and competing shippers they would 
 have been "held up" for the 18 cent rate. 
 
 The chairman of the traffic association testified that the 
 18 cent rate was a "class" and not a "commodity" rate, and was 
 never intended to apply to oil. 
 
 To have applied it to oil would have been, it appears, a 
 heavy discrimination against oil, since, for example, it is shown 
 that packing house products were carried for 10 cents, cornmeal 
 for 7 cents, linseed oil for 8 cents, brick for 5 cents, and so on. 
 
 Then why, in the name of reason, single out the petroleum 
 "commodity" for an 18 cent rate? Or, if the 18 cent rate was, 
 aa the prosecution seemed to contend, the only possible lawful 
 
19 
 
 rate, how about the multitude of shippers who got the classified 
 "commodity" rates? Is there net some force in the contention of 
 President Moffett ? 
 
 Thousands of tons of freight have been shipped from these 
 points during the last fifteen years under the same circumstances 
 as the Standard shipments, and if the Standard is guilty in this 
 case, so is practically every other shipper in this great manu- 
 facturing territory. Is there a purpose in selecting the Standard 
 as the victim? 
 
 The Standard contends that if its 6 cent rate from' the Alton 
 was not the lawful and filed rate, it was informed that it was so 
 by the Alton rate clerk. To that Judge Landis ruled that the 
 shipper was bound to know otherwise by diligent inquiry. 
 
 That principle would of course apply to all shippers. They 
 would be bound under that ruling to discover that the rate 
 charged them for any shipment is the filed rate, at their own risk 
 of liability to a fine of $20,000 for each case of accepting a car- 
 rier's wrong statement. That seems to put a pretty heavy cur- 
 rent risk on shippers. 
 
 Judge Landis was not clear in his reasons for excluding 
 testimony by the defendant as to the lawful. 6 cent rate over the 
 Eastern Illinois, by which the Standard shipped one-third of its 
 product from Whiting to St. Louis. If it knew the Alton 6 cent 
 rate was unlawful, why did it not ship all of its oil over the 
 Eastern Illinois? The evidence excluded on this point seems 
 worth something as against the general charge of deliberate antl 
 conscious violation of the law. 
 
 PLAIN GERMAN SOCIALISM. 
 
 [From the Railway Worlds Philadelphia, August 9, 1907.] 
 
 Probably there is not one of our readers who can not recall 
 within his own experience twenty instances of men who have 
 amassed comfortable fortunes, in each case far exceeding the 
 ratio of increase of the Standard Oil Company, and yet by the 
 reasoning of the administration eacli one of these men has ac- 
 quired his money by unfair methods. He has charged the highest 
 price for his goods or services, he has given as little and gained 
 as much in business transactions as the law would allow him, he 
 has been thrifty and prudent in hiS investments, has bought low 
 and sold high, if he is a merchant or manufacturer he has taken 
 advantage of the necessities of manufacturers and competitors to 
 acquire merchandise at cut prices, has undersold his competitors 
 wherever possible in order to enlarge his markets, has paid the 
 lowest wages consistent with the highest efficiency of his em- 
 ployes, in short, he has played the game of business according 
 to the rules, he has taken the risks of failure and has kept the 
 gains of success. The Standard Oil Company has done no more. 
 If it is to be penalized and condemned for its successes, then 
 every man who has seen his initial savings under his careful and 
 prudent management grow into a considerable fortune must 
 also be condemned. 
 
 There is no escape from this position. If large profits are 
 immoral in one case they are wrong in every other, and since 
 large profits for a few men and losses for the great majority are 
 the inevitable consequences of modern business, the profits of 
 modern business are, by the Commissioner of Corporations and 
 
20 
 
 by Theodore Roosevelt, President of the United States, emphat- 
 ically and sweepingly condemned, and we arrive by an easy yet 
 inevitable process of reasoning; at the conclusion which we have 
 long been reluctant to adniit, that the outcome of the administra- 
 tion's campaign against the great corporations, wise and neces- 
 sary as its early stages were, is the sociaHsm of Karl Marx and 
 Ferdinand La Salle, who rested their doctrines on the proposition 
 that all wealth was the product of labor, and that no man can 
 become rich except at the expense of his fellows. 
 
 If we were' not perfectly certain that the American people 
 were speedily recognizing this sinister development of the "square 
 deal" philosophy, we would be gravely alarmed for the industrial 
 future of the United States, for certain it is that progress in 
 commerce and industry is impossible under a system of govern- 
 ment which without guaranteeing against the risks of failure, 
 attempts to limit the rewards of success. We are confident, how- 
 ever, that in time, it may be not until President Roosevelt has 
 been succeeded by some wiser statesman, the people will awake 
 to the fact that the attack upon the profits of corporations is an 
 attack upon the profits of the individual, and that the merchant, 
 the farmer and the small manufacturer are even more threatened 
 by socialistic legislation and administration than the great capital- 
 ists and the captains of industry, whose gains are already, 
 assured. 
 
 A PERIL TO ALL INVESTORS. 
 
 *• 
 
 iFrom the Neui York Times, August 6, 1907.] 
 
 It has been well nigh universally assumed by the press and , 
 in general discussion of Judge Landis's "sentence" that the fine 
 of $29,240,000 was imposed upon the Standard Oil Trust, the 
 veritable octopus itself, the Standard Oil Company of New Jer- 
 sey. In many quarters, therefore, the unprecedented magfnitude 
 of the fine has been regarded merely with amusement, as, of 
 course, a corporation that disburses $40,000,000 a year dividends 
 and in twenty-four years has distributed among its stockholders 
 more than half a billion dollars is able to pay this fine. 
 
 The fact is that the corporation upon which the fine was im- 
 posed is the Standard Oil Company of Indiana, which has $1,- 
 000,000 of capital stock. Some warrant for the prevailing misap- 
 prehension may be found in thd language used by Judge Landis 
 in imposing the fine: 
 
 "The nominal defendant is the Standard Oil Company of 
 Indiana, a million-dollar corporation. The Standard Oil Company 
 of New Jersey, whose capital is $100,000,000, is the real defend- 
 ant. This is so for the reason that if a body of men form a large 
 corporation under the laws of one State for the purpose of carry- 
 ing on business throughout the United States, and for the accom- 
 plishment of that purpose absorb the stock of other corporations, 
 such corporations so absorbed have thenceforward but a nominal 
 existence." 
 
 Now that Judge Landis has spoken, we suppost this is the 
 law. Hitherto the law has been very careful to distinguish be- 
 tween the corporation and the holders of its capital stock. A cor- 
 poration may be convicted of the most infamous crimes without 
 making its stockholders great sinners before the Lord. The prin- 
 ciple is laid down in Purdy's "Beach on private Corporations" in 
 these words : 
 
21 
 
 "A corporation is an entity regardless of the persons who 
 own all of its stock. The fact may be that one individual has be- 
 come the owner of all the stock — but that does not make him • 
 and the corporation one and the same person. There is no iden- 
 tity between them. The owner of all the stock of a corporation 
 does not own all its property." 
 
 These principles have been repeatedly affirmed in decisions 
 of the courts, which are cited by the text writer whose words 
 we quote. Judge Landis sets up a new principle. He looks be- 
 yond the "nominal" defendant corporation to its shareholders. 
 This raises some question of interest and importance. If in the 
 exercise of judicial discretion a fine should be imposed far ex- 
 ceeding the market value of all the assets of a corporation, would 
 the stockholders be individually liable to the Government in the 
 ratio of their holdings ? Take the present case, even, if the Uni- 
 ted States Marshal fails to find sufficient assets of the Standard 
 Oil Company of Indiana to pay the fine of $29,240,000, can the 
 Government maintain an action against the Standard Oil Com- 
 pany of New Jersey, which is the owner of the stock of the Indi- 
 ana concern, for the collection of the fine? 
 
 The practice of going behind the corporation and of taking 
 up questions of the responsibility and solvency of its shareholders 
 broadens the discretionary field of the Court. Two railroad 
 corporations may be convicted of granting rebates in violation of 
 laws. Upon inquiry the Court ascertains that the shares of one 
 corporation are widely distributed in the hands of "widows and 
 orphans." In that case, we suppose, the minimum fine might be 
 imposed. But if it should transpire that the entire capital stock 
 of the other corporation was held, let us say, by Mr. Rockefeller 
 or Mr. Rogers, the Court might cite them to appear and testify 
 as to their private incomes as a means of determining whether 
 the maximum penalty might be pronounced with a reasonable ex- 
 pectation that assets would be found to satisfy the judgment. 
 
 If the courts, following the precedent established by Judge 
 Landis, shall adopt the policy of imposing the maximum fine of 
 $20,000 for each violation of the rebate law, it may be imagined 
 that the holders of corporation shares will be in a good deal of 
 doubt about the value of their securities. Most of the great 
 Trusts, and, , we presume, the majority of the great railroad sys- 
 tems; have been guilty of receiving or giving rebates. Upon 
 what industrial corporation or what railroad will the vengeance 
 of the Government next fall? It is impossible to see, and it is 
 quite beyond conjecture how many fines mounting into the mill- 
 ions will be imposed. 
 
 What will be the effect upon the peace of mind of the bond- 
 holders and of investors whose demands constitute the bond mar- 
 ket ? That market has of late been in a somewhat languid and de- 
 pressed state. It will hardly be stimulated to renewed activity 
 by Judge Landis's act. A railroad corporation now apparently 
 prosperous and liv,ing in the fear of the law may at any time for 
 offenses within the last three years be subjected to fines that 
 would not only deprive the stockholders of their dividends for 
 years to come, but would make it impossible for the corporation 
 to pay the interest on its bonds. There has been some hope that 
 foreign capital might be drawn upon by sales of bonds abroad 
 for the immense additions to railroad facilities that the trans- 
 poration interests of the country demand. The fine of $29,240,- 
 
22 
 
 ooO imposed upon the Standard Oil Company of Indiana, and the 
 steps taken to call the Chicago & Alton to account for grantmg the 
 rebate will doubtless put an end to foreign inquiry for American 
 bonds. This is one of the consequences of applying the extreme 
 rigor of the law that might easily have been' foreseen. But the 
 present tfemper of the public toward the corporatioins takes ac- 
 count of no consequences save those incident to works of revenge 
 and destruction. 
 
 A BLOW AT ENTERPRISE. 
 
 [From the American Grocer (New York), August 7, 1907.] 
 
 The political character of the prosecution is shown by fol- 
 lowing up the action of Judge Landis with a letter from Commis- 
 sioner Herbert Knox Smith, claiming that the Standard Oil Com- 
 pany is a monopoly ; that it has exacted too great a margin be- 
 tween the cost of crude and refined oil ; that it has not given the 
 people their full share of the profit derived from by-products; 
 that its claims to efficiency, "is a complete misrepresentation of 
 facts." Everybody knows that not only has the Standard Oil 
 Company given the world the best and most uniform quality of _ 
 illuminating fluid it has ever known, but it has built up no small 
 share of the commerce of the Nation. Any corporation that 
 carries its transactions to the sixth decimal cannot be accused of a 
 lack of efficiency. 
 
 Is the charge o. extortion fair, coming as it does from Uncle 
 Sam, charged with unjust tariff exactions and levying tribute be- 
 yond all reason from every -one of 84,000,000 people ? We would 
 that Standard Oil type of efficiency was practiced by the United 
 State Government, for it would teach the people that there is no 
 need for waste, extravagance and unnecessary expenses. How 
 the Standard Oil would clean out the* departments and put them 
 on the basis of a first-class mercantile organization ! The Post- 
 office Department would be self-sustaining; there would be no 
 free seeds from the Agricultural bureau; no junketing excursions 
 from all departments. Efficiency and economy would be enforced 
 and a lesson taught such as all Nations need. 
 
 The Standard Oil put a stop to the refining of dangerous 
 oils, at one time so bad that laws were passed by all the States to 
 regulate the grade. It has conferred benefits on the race im' 
 measurable in comparison with its exactions. It even contributed 
 to the election of the administration that is prosecuting and per- 
 secuting a corporation that ought to be a source of National 
 pride ; and claims that it has not violated the laws as charged arid 
 seems in a fair way to prove it. The course of the Government 
 is scarcely in line with "fair play and a square deal." It is a 
 blow at enterprise, skill, the perfection of commercial methods. 
 
 SOMETHING IIKE IT IN MAINE. 
 
 [From the Lewiston, Me., Daily Sun, August 5, 1907.] 
 
 The sensation of Saturday was Judge Landis's imposition of 
 the $29,000,000 fine on the Standard Oil Company. The state- 
 ment made by the company, of evidence that Judge Landis refused 
 to admit, may have weight with those sufficiency learned iii the 
 
23 
 
 law; and likely, too, with men of large business experience. J* 
 makes the case look like a persecution. We have had something 
 like it in the enforcement ( ?) of some of our Maine laws. 
 
 Notice that the offences for which these fines are inflicted 
 were committed between September, 1903, and March, 1905. 
 The Elkins law wa,s enacted in February, 1903. The first offences 
 against that law here alleged were committed in September, 1903. 
 The trial for those offences came in the summer of 1907, nearly 
 four years after the offences were committed. Why? Why di«^ 
 it take the Government nearly four years to get round to a pros:s= 
 cution for these violators of the Elkins law? The President at 
 that time was Theodore Roosevelt. Theodore Roosevelt was the 
 President that does things. He had already been in office two 
 years when those offences were committed. Why did it take him 
 nearly four years more to do something to the Standard Oil? 
 
 Notice,, too, that those offences continued unchecked by 
 President Roosevelt through the Presidential year 1904. How do 
 you suppose that happened? 1904, you remember, was the year 
 that President Roosevelt was doing business with E. H. Harri- 
 'man, business relating to the carrying of New York State by the 
 Republicans. 1904 was the year the insurance companies made 
 their big contributions to the Republican campaign fund. All 
 through that year 1904 President Roosevelt was so negligent of 
 his duty as the chief executive of the Nation that that horrid 
 monster, the Standard Oil, was able to violate the Elkins law so 
 grossly and continuously that it deserved to be punished with 
 multi-million-dollar fines. 
 
 Judge Landis's fine of the Standard Oil is an indictment of 
 the Roosevelt administration. 
 
 Can you recall without a grin the President's (since election) 
 eagerness to do something to swollen fortunes and naughty cor- 
 porations ? 
 
 THE CONSENSUS OF BUSINESS OPINION. 
 
 [From the Daily Banker & Stockholder (New York), August 7, 1907.] 
 
 It seems to be the consensus of intelligent business opinion 
 that the amount of this fine is excessive and that the highest court 
 will not concur in it to the large amount imposed, for the ends of 
 justice scarcely require such extremes — the object of the law be- 
 ing remedial rather than punitive. It is unfortunate at this time 
 when business welfare and general prosperity are so desirable 
 that such damaging blows to market values are deemed neces- 
 sary. Obedience to statute law might be produced without this 
 wholesale penalty by which many will suffer without any wrong- 
 doing on their part. The Standard Oil Company stock selling at 
 $500 a share at the present rate of dividend realizes about 8 per 
 cent, on the market value of the shares which, compared to var- 
 ious other industrials, is not deemed excessive. It must also be 
 borne in mind that this corporation has done a great deal to de- 
 velop and maintain the commercial importance of oil in all the 
 world's markets and prove the progressive power of an American 
 enterprise to successfully compete with strong foreign competi- 
 tion. No less powerful combination could have done this. Amer- 
 ica by this corporation has furnished the cheapest light to the 
 world and our industry and commercial prowess have been pro- 
 
24 
 
 moted and advanced. As co-operation is the basis of an indus- 
 trial life and is its organic principle, so combination is to-day 
 primal in all successful, economical enterprise. Those persons 
 who hold sound stocks are foolish to be shaken out under any such 
 court ruling as this, which in reason and justice seems of very 
 improbable confirmation and which does not affect their property 
 except in very incidental degree. 
 
 THE SAVOR OF OPERA COmttUE. 
 
 [From the Boston Daily Tribune, August 5, 1907.] 
 
 This is the era of the spectacular, and the $29,240,000 fine 
 imposed by Judge Landis of Chicago upon the Standard Oil 
 Company of Indian^ fits the era to perfection. It was the spec- 
 tacular that prevailed also when John D. Rockefeller was spec- 
 tacularly haled to Chicago to give evidence which meant nothing 
 and which, as the officials connected with the case well knew, 
 could have been obtained far more readily from others interested 
 in the management of the Standard Oil Company. 
 
 Whatever may be said of this fine which declares that the 
 defendant company shall pay the maximum sum on each of the 
 1,462 counts of the indictment under which it was found guilty, 
 the incontrovertible and sensationally spectacular fact remains 
 that the verdict is "the biggest ever." This, of course, is an 
 achievement of notoriety destined to entitle all who participated 
 to at least a momentary place in, the temple of fame. 
 
 Whether the glory will be more than passing is as dubious 
 perhaps as is the likelihood that the Standard Oil Company of 
 Indiana will ever have to pay the twenty-nine millions which it 
 has been mulcted. The right to appeal still exists, and there is 
 a possibility that a higher court may find elements in the case 
 aside from those that are purely spectacular. Record breaking 
 in the matter of fines is not necessarily contagious among the 
 judiciary. 
 
 If the defendant company is guilty — a point on which all 
 (sensationalists excepted), are not agreed — there is little doubt 
 that it will be made. quite apparent to the Court of Appeals or 
 the Supreme Court, as the case may be. But even if found guilty 
 there is the barest possibility that a higher court may feel like 
 lopping off at least the odd hundreds of thousands from the fine. 
 Somewhere in the amendments to the Constitution of the United 
 States, we believe, occurs a paragraph to the effect that "excessive 
 bail shall not be required, nor excessive fines imposed, nor cruel 
 and unusual punishments inflicted." Whether or not a corpow- 
 tion can expect to come beneath the protecting aegis of this 
 amendment is, perhaps, debatable. 
 
 With all deference due to the law and its illustrious exem- 
 plars, we respectfully submit the opinion that had the honorable 
 justice at Chicago seen fit in his wisdom to impose the minimum 
 fine of $1,426,000 instead of the maximum of $29,240,000, the 
 interests of justice would have been quite as well served and 
 common sense would not have suffered, however severe might 
 have been the shock to the speculative era. 
 
 As it is, the proceedings in the case of the People vs. the 
 Standard Oil Company of Indiana have altogether too much of- 
 the savor of opera eomique to be quite impressive. 
 
25 
 AN OPEN BID FOR PLAUDITS. 
 
 [From the Chicago Record-Herald, August 6, 1907.] 
 
 The imposing upon the Standard Oil Company of Indiana 
 of the heaviest fine known in the history of criminal jurisprudence 
 is the outcome of the conviction of that company for accepting 
 rehates from a railroad in violation of the interstate commerce 
 law. The gross penalty of $29,240,000 is made up of maximum 
 penalties of $20,000 each on every one of the 1,462 counts of the 
 indictment duly sustained on the trial. 
 
 Of the temper of the court in the imposing of this enormous 
 fine and the rather intemporate heat of its words, little need to 
 be said to-day. There will be criticism of this wherever the text 
 of Judge Landis' decision is read. That something besides a 
 high sense of the justice and dignity of the laws, and a keen 
 appreciation of outrage upon public rights, urged the court to 
 its decidedly flamboyant declaration on the lawbreaking repres- 
 ented by the defendant company, is only too plain, and makes 
 one ask why the court is making so open a bid for the plaudits 
 of the masses in thus scathing so popular an object of public 
 abuse. 
 
 Now that the case of the Chicago & Alton Railroad, the 
 giver of these illegal rebates, is ordered brought before the 
 grand jury, it remains to be seen whether or not the court will 
 continue its high standard of causticity in its case. The Chicago 
 & Alton Railroad has some Indiana stockholders, it is believed, 
 who will not enthuse over any overdoing of the judicial berating 
 and who possess a certain influence as men of standing in their 
 communities and will, to that extent, demand fairness in remarks 
 from the bench. 
 
 What interests the public, despite all predictions for or 
 against thfe "Standard" bugaboo, is what defense is put up on 
 behalf of the company or given out by its officials. James A. 
 Moffet, president of the Indiana company, asserts that the com- 
 pany is not even technically guilty of rebating, and that the 
 court would not permit the introduction of facts to prove this 
 point. He says: "The contention of the Government was that 
 the lawful rate was 18 cents per 100 pounds between these two 
 points. The defendant claims first that the lawful rate was 6 
 cents ; and secondly, if 6 cents was not the lawful rate it was 
 the rate issued to the Standard by the Alton as the lawful rate, 
 and the Standard was justified in believing from its own investi- 
 gation and from the information received from the railroad com- 
 pany that 6 cents was the lawful rate. 
 
 "The 18 cents rate was a 'class' and not a 'commodity' rate, 
 and the chairman of the Chicago and St. Louis Traffic Associa- 
 tion, the association issuing the i8-cent rate, under oath testified 
 that it was never applied and never intended to apply to oil. 
 
 "In view of the fact that petroleum had been openly carried 
 over the three roads from Whiting to East St. Louis for from 
 10 to 14 years for 6 cents, what a draft it is on human credulity 
 for the prosecution to_ assert that 18 cents was the only possible 
 legal rate. The Standard Oil Company asserts; that it is not 
 even technically guilty and that it ought never to hav6 been 
 prosecuted because of the claimed failure of a railroad company" 
 — which has neither been indicted nor- prosecuted — to file its 
 tariff, and that the prosecution of this defendant unde^ the cir- 
 
26 
 
 cumstances of this case is a prostitution of the spirit and the 
 high purposes of the interstate commerce act." 
 
 All of which leads one to note that if Judge Landis can go 
 out of his way to indulge in caustic declamation, Mr. Moffet 
 shows himself an artist in his rendering of the "square deal" 
 with variations. 
 
 WHAT IT WOULD MEAN. 
 
 [From the Wall Street Daily News, August 6, 1907.] 
 
 Consensus of opinion is that Judge Landis will be overruled 
 by the Supreme Court on the broad ground that the Constitution 
 prohibits cruel or unusual punishments. If this decision were to ■ 
 stand as the law of the land no railroad or no corporation doing 
 business with railroads would be safe from virtual confiscation. 
 Many of the provisions of the Sherman Anti-Trust law are so 
 crudely framed and so drastic in character that it is impossible to 
 do business without violating them. Public opinion will never 
 support the lodgment of tyrannous power in the Department of 
 Justice and the Courts. Suppose that in same wave of popular 
 passion a party under such leadership as that of Bryan or Hearst 
 should come into power — what would happen if the Landis de- 
 cision is enforced? Panic and commercial ruin would follow as 
 night and day. 
 
 The proper course of action is new legislation which shall 
 have equal regard for the rights of the people and the rights of 
 the corporations. The corporate form of business has existed long 
 enough to disclose both its good and bad sides. Just simply to 
 attack corporations is easy enough and in certain parts of the 
 country is a cheap way of winning political preferment, but it is 
 dangerous to the public. weal to run amuck without discrimina- 
 tion. It must be possible to put laws on our statute books that 
 shall be constitutional and equitable, that shall leave free play to 
 business development. Admittedly, the Sherman Anti-Trust law 
 does not do this. It was a makeshift piece of legislation any- 
 how, which does not stand the test of time. 
 
 We have firm reliance in the Supreme Court. That august 
 tribunal is beyond the sway of passion and prejudice. Never yet 
 has appeal to it for justice failed. And it is the final arbiter. 
 
 DESTRUCTION NOT REFORMATION. 
 
 [From the Cleveland Plain Dealer, August 6, 1907.] 
 
 The latest government report dealing with the Standard Oil 
 Company raises a question of greater public importance than is 
 involved in the Chicago case. Despite much recent overhasty 
 generalizing the American judicial ma<!hinery has yet to be found 
 defective in dealing equal justice to magnate and labor leader, 
 rich man and poor. If the Standard has broken, or is breaking 
 the law, it will be punished in due time. Meanwhile superior 
 courts have yet to pass upon the decision of Judge Landis. The 
 appeal taken will involve questions of fact, law and constitutional- 
 ity that cannot be regarded as settled until the Supreme Court 
 has spoken. 
 
 But the charges preferred by Herbert Knox Smith, commis- 
 
27 
 
 sioner of corporations, come before the bar of public opinion for 
 review. The issue he raises involves the whole structure of to- 
 day's commercial world. When he attacks the Standard Oil Com- 
 pany he strikes as well at the steel business from the profits of 
 which Andrew Carnegie built his libraries, and the general prin- 
 ciple of trade combination that reaches down to associations of 
 coal dealers and grocery men. The Standard, as the most com- 
 plete type of this sort of present day business organization, has 
 defended it on the ground that it eliminated waste in production 
 and distribution and brought lower prices to the consurner. If 
 this process of combination bore hard on individual producers, 
 here and there, if it was as ruthless in reaching the goal as it has 
 been charged with being, it was still a question, according to its 
 defenders, whether a greater good did not result for the larger 
 number. 
 
 Herbert Knox Smith, on the basis of an investigatioii by gov- 
 ernment agents, fiercely attacks this argument. The price to the 
 consumer would be lower at present, he claims, if the Standard 
 Oil Company had never been organized. He claims that the real 
 reduction came during the days when the independent and small 
 producer still flourished. This is an invitation for the public to 
 demand the dissolution of all these great trade combinations, 
 including the Standard, into their integral parts, and for such 
 laws and the enforcement of them as shall prevent such combi- 
 nations in the future. The suggestion to make over the modern 
 American business world involves a huge problem and it is a 
 grave question wrhether the best interests of society would be sub- 
 served thereby. Now that it has been put forward in this official 
 way, presumably to be followed by an administrative demand for 
 legislation, the businessmen of the country, the organizers of 
 these huge combinations, have a right to be heard. And it is 
 time for them to. put forward their side of it. In the last analysis 
 public opinion is fair. At least it always wants to be. The great- 
 est frankness with the public can best serve the corporations thus 
 challenged. When both sides are in it will be time to reach a 
 verdict. 
 
 The purpose of punishment is the correction, the reforma- 
 tion, of the ofl?ender, not his destruction. The end sought is the 
 protection of society and not revenge. The blow aimed directly 
 from Washington at the. Standard Oil Company right after the 
 Court had heeded the plea of the Government prosecutors to in- 
 flict the enormous fine of $29,240,000, raises the question as to the 
 purpose of the administration in this dogged pursuit of the Stand- 
 ard. 
 
 Keeping in mind that punishment is inflicted for the protec- 
 tion of society the question arises, incidentally, whether society 
 will not have to bear the burden of. this heavy fine, provided the 
 higher Courts agree with the findings of Judge Landis. Will the 
 company or the people suffer the penalty ? The public is still pay- 
 ing anew each year the cost of the great anthracite coal strike in 
 increased prices collected on the argument that the strike made 
 them necessary. And to be fair must not the Government, if the 
 Standard is forced to pay, collect from the already heavily bonded 
 Chicago & Alton road, and then pursue the ramifications of the 
 rebate system through such centers of trade as Cleveland, Pitts- 
 burg, St. Ltjuis and Minneapolis and demand millions in fine from 
 railroads and business corporations? Does anyone fancy that 
 
28 
 
 these great concerns, if forced to issue bonds in order to pay 
 millions into the treasury, will not collect the amount from the 
 people? It is hardly likely that the directors and stockholders 
 will dip into their private purses for such amounts. _ 
 
 Or suppose that the collection of enormous fines involves the 
 bankruptcy of some of these concerns. While the Standard Oil 
 Company is not likely to quit business even if it is compelled to 
 pay $29,240,000, the fact remains that the legal defendant in 
 the Chicago action, the Standard Oil Company of Indiana, is a 
 concern with a total capitalization of many millions less than the 
 fine imposed upon it. This principle, applied to a concern without 
 a parent corporation behind it, would mean its capital punishment 
 on the day it was forced to overstrain its credit in the effort to pay 
 a fine. Is this method of prosecution likely to produce reforma- 
 tion and to protect the people? The end sought is the punish- 
 ment of wrongdoing, not the persecution or destruction of great 
 business enterprises. 
 
 MANY THINGS WORSE. 
 
 IFrom the Richmond, Cal., Daily Leader, July 26, 1907.] 
 
 The people of this country are prone to attack the Standard 
 Oil Company with or without provocation, and in doing so they 
 do not consider what the so-called monopoly has been doing for 
 the United States. An excerpt from an article in the current 
 issue of Leslie's Weekly says that "the aim of the Standard has 
 constantly been to cheapen the cost of oil to the consumer and in- 
 crease the uses of petroleum in every way possible." And this 
 is true. The men and women of to-day who have reached the 
 age of fifty years can remember when coal oil was from forty to 
 fifty cents per gallon, and it was hard to procure at that price. 
 Now it can be purchased for a much less sum and the fuel pro- 
 ducts are a great deal cheaper. As a matter of fact, according to 
 the article in question, the public has become so accustomed to 
 attacks on our great industries, or those of them that have been 
 singled out for abuse that it fails to give fair consideration to 
 both sides of the question. It is accustomed to regard the Stand- 
 ard Oil Company as the property of a few men, when in fact the 
 concern belongs to more than 6,000 shareholders. Every day you 
 hear men in Richmond denouncing the Standard Oil Company, 
 yet it is the Standard that made the to"wn and is maintaining it. 
 If the works, the refinery, should close down to-morrow and re- 
 main closed for any considerable length of time, nine-tenths of 
 the people would be compelled to move away and seek employ- 
 ment elsewhere. There are worse things in the world than the 
 Standard Oil Company. 
 
 AN "UNREASONABIE, UNFAIR" REPORT. 
 
 IProm the New York Times, August s, 1907.] 
 
 The second part of the report of Mr. Herbert Knox Smith, 
 Commissioner of Corporations, upon the petroleum industry is 
 made public this morning. It deals with prices in the petroleum 
 business and the profits of the Standard Oil Company, which re- 
 
29 
 
 fines substantially nine-tenths of the illuminating oil produced in 
 the United States. The report is interesting. It shows many 
 things. One is that the Standard Oil concern is making a great 
 deal of money, which everybody knew before. Another is that 
 Commissioner of Corporations Smith is unable convincingly to 
 interpret the facts he sets forth, which is the same thing as saying 
 that his conclusions are not demonstrated. 
 
 In general, this is the interpretation he puts upon the facts 
 and statistics of his report : 
 
 "They demonstrate the falsity of the historic claim of the 
 Standard Oil Company that by reason of its extraordinary effi- 
 ciency it has brought prices to a point lower than would have 
 been reached had business remained under normal competitive 
 conditions in the hands of a number of comparatively smaller 
 concerns." 
 
 Again, at the end of the report we find this further state- 
 ment : 
 
 "The claim of the Standard that its control' of the business 
 is due to its ability to maintain low prices because of superior 
 efficiency is a complete misrepresentation of facts." 
 
 We do not think that experienced business men, accustomed 
 to the examination of trade statistics and familiar with economic 
 facts and principles, would concur in the conclusions of this 
 ■ report. It is generally admitted that from 1866 to 1874 the busi- 
 ness of refining and selling petroleum was carried on under 
 competitive conditions. It may be further admitted that during 
 the last ten years the monopoly of the Standard Oil Company 
 has been pretty nearly established. It has produced 88 per cent, 
 of the coutry's total output of illuminating oil. But something 
 has reduced the price per gallon of export oil in barrels, that 
 being the trade price usually selected for statistical comparison, 
 from 30.8 cents in 1866, 20.75 cents in 1867, 21.16 cents in 1868, 
 24.59 cents in 1869, to 7.22 cents in 1905, and to an average of 
 a little over 7 cents per gallon during the last ten years. Mr. 
 Smith concludes that the "claim" that this reduction has been 
 effected, through its extraordinary efficiency, by the Standard 
 Oil Company is false. The plain inference from his language 
 is that in his opinion under normal competitive conditions prices 
 would now be lower. He has been much influenced, in reaching 
 this conclusion, by his study of the "margins," that is, the 
 difference between the cost of crude oil and the selling price of 
 refined oil which his tables exhibit. 
 
 It seems to us that the picture presented by statistical tables 
 and diagramatic representations of the history of prices in the 
 petroleum industry is that of a business carried on substantially 
 under the conditions that govern most business intelligently 
 managed in a modern way. They seem to us, further, to show 
 that the chief, the dominating, influence in lowering the price of 
 illuminating oil to consumers during the past forty years has been 
 that very "efficiency" of the Standard Oil Company from which 
 Mr. Smith withholds all credit. It is true that in the diagram 
 showing the course of prices the selling price of refined uniformly 
 rises with the price of crude, and sometimes rises disproportion- 
 ately, thus increasing the apparent margin of profit. But it is 
 true, also, afid the fact is one which no business man or economist 
 would overlook, that the price of refined uniformly falls with the 
 price of crude; Why should the Standard Oil Company ever 
 
30 
 
 reduce the selling price of its refined product, thus diminishing 
 its profits, if it be true that it has a controlling monopoly of the 
 oil business? If the Standard is as wicked, as grasping, and as 
 remorseless as it is painted, we do not see why the diagram line 
 of refined selling price should not run straight across the page 
 quite disregarding the ups and downs of the crude price line. 
 If a monopoly be the real thing, if it controls, and if it haveno 
 conscience, it must be a fool to throw away money by lowering 
 the selling price of its products merely because of a drop in the 
 price of its raw material. 
 
 Mr. Smith argues that the "margin" shows an extortionate 
 profit. In his judgment, from seven-tenths of a cent to one cent 
 a gallon "margin" between the cost of crude and the price of 
 refined would constitute "a good profit on the business," while 
 during the last ten years the "margin" actually maintained by 
 the Standard has ranged from 5.3 cents to 6.6 cents. Yet he 
 says that "independent cotnpetitors though small and weak, do 
 survive, and do business at prices which are deliberately reduced 
 by the Standard within the small competitive areas reached by 
 these independents, and which are much lower than the average 
 prices received by the Standard throughout the country." If 
 the "margin" difiference between a fair profit and the Standard's 
 actual profit is as great as Mr. Smith believes, the petroleum 
 business in all these years has simply been the most inviting field 
 for capital investment in the whole world. If his belief is well 
 founded, the independent competitors would not have been small 
 and weak, but mighty and rich. They would have grappled with 
 the Standard, they would have broken up its monopoly. 
 
 The evident truth is, and it completes the picture, that the 
 Standard Oil Company has been "efificient." Some of the best 
 business brains in the world have labored in its service. The 
 economies due not only to vast operations but to high intelligence 
 and great keenness have enabled it to cut down producing cost. 
 In this way chiefly it has kept the field substantially to itself. Its 
 policy has been to maintain prices always high enough to return 
 enormous profits, yet low enough to give the independent com- 
 petitors many anxious days and nights. Undoubtedly the 
 "margin" between the price it pays for crude and the price it 
 receives for refined has been and is much greater than the similar 
 "margin" out of which the independent competitors get their 
 profits. "Eflficiency" makes the difference. These competitors 
 would, of course, be glad to reap greater profits through higher 
 prices. Do they voluntarily remain "small and weak ?" And here 
 stands forth somewhat conspicuously a truth in conflict with Mr. 
 Smith's conclusion. It cannot be doubted, we think, that if Mr. 
 Rockefeller and the men about him had never been born, and if no 
 other men of equal capacity had organized and built up the gfeaf 
 Standard Oil business, and had "normal competition" always 
 existed in the industry through the strife one with another of 
 many companies with a few millions of capital, the price paid 
 by consumers in this country for illuminating oil would now be 
 much higher than the actnat quoted prices. That is what the 
 price tables and diagram* not only of the reports of the Bureau 
 of Corporations, but of Miss Tarbell's book, appear to show and 
 demonstrate when interpreted in an unbiased way by the light 
 of human reason and business experience. 
 
 It may be admitted, as Mf. Smith asserts in his report, that 
 
31 
 
 the Standard has made "persistent use of the worst industrial 
 methods;" that it has destroyed the business competitors; that 
 it has secvired "excessive profits for the small group of men" 
 ,.>vho have dominated the business ; that it has resorted to, many 
 unfair methods, among which the secret railroad rebate is con- 
 spicuous. But even when these things remain undisputed, and 
 we know of no disinterested person who disputes them, it appears 
 in view of other undisputed facts in the history of the petroleum 
 industry, that the conclusions of the report made to the President 
 by the Commissioner of Corporations are in many substantial 
 respects unreasonable, unfair, and not sustained by the evidence. 
 
 WAIT FOE THE HIGHER COURT. 
 
 [Frotn the New Haven, Conn,, Journal & Courier, August 6,, 1907.] 
 
 * * * Back of everything that has been written or spoken 
 there has worked to the disadvantage of this colossal corporation 
 the growing and not altogether reasonable prejudice against the 
 immense fortunes which have been accumulated in this country 
 by what are known as the captains of industry. For a while they 
 were regarded as the representatives of that indomitable com- 
 mercial will and skill which was forcing this nation to the front 
 rank among the producing nations of the earth. It is not such a 
 very long time ago that they were referred to in the speech of 
 national pride. Now, owing to the bitterness which has been en- 
 gendered as a consequence of wholesale defiunciation of wealth, 
 men and corporations have been made to suffer, not so much be- 
 cause of the possession of a fortune, as because of the size of the 
 ' fortune they possess. It has been a curious growth in prejudice 
 and while we hate as much as another the unfair and dishonest 
 accumulation of wealth, and in particular the conscienceless use 
 of it to control houses of legislation, it is evident that the 'time 
 has come, as a direct result of this spectacular court decision, 
 when sober and thinking men must measure corporate action with 
 clearer understanding of all of the influences which have worked 
 to make it powerful. * * * 
 
 We aire not engaged in the self-imposed task of either de- 
 fending or condemning the Standard Oil Company in this con- 
 nection. We know too little of the facts involved to speak con- 
 fidently upon either side of the question, and we decline explicitly 
 to take a hand in the game of wholesale denuciation of rich men 
 . because they are rich, and because those who are not rich enjoy it. 
 It is known that great fortunes have been made in a manner no 
 longer tolerated by the law. It is known that possessors of wealth 
 have been condemned for no better reason than that they were 
 known to be wealthy. It is known that unreasonably prejudice 
 has played havoc with the public judgment of human motives for 
 political purposes. If the pendulum of human emotions has 
 swung too far in one direction it is the duty of intelligent men to 
 see that it does not swing too far in the opposite direction, and this 
 they can best do by patiently awaiting the voice of a higher court 
 before accepting Judge Landis as the Moses to lead us out of our 
 troubles. Costly mistakes have been made, but it is yet to be 
 proved that they were the mistakes of the criminal instinct. 
 
32 
 A POREIGN PLEA FOR FAIR PLAY. 
 
 [From the Petroleum Review of London^ June 22, 1907.] 
 
 The garbled report of the Commissioner of Corporations 
 seems to suggest some criminal offense by reason of the Stan- 
 dard's refusal to transport oil to competitive refineries. This 
 argument is illogical and absurd, and the inference to be drawn 
 from it is that the Commissioner is ignorant of the most simple 
 principle of business — never use your finances and brains for the 
 benefit of a competitor. Again the Standard appears to have 
 commited that unpardonable offense of hitting upon the trans- 
 port of oil in bulk — "a much cheaper and safer system, which 
 reduces the cost of marketing greatly." Here, we presume, is an 
 attempt to bring out the reason why the Standard has "deliber- 
 ately destroyed competition," a conclusion arrived at without 
 even childlike reasoning. As a matter of fact, we know that com- 
 petition in the American oil industry has always been keen, and 
 to-day it is keener than ever before, the only complaint of the 
 Standard's competitors being that, owing to its remarkable or- 
 ganization and facilities — both the results of careful thought out 
 plans, which, having been matured at the risk of vast sums of 
 money, it is able to 'strike so narrow a margin between buying," 
 refining and selling that the great difficulty is to make sufficient 
 profits. 
 
 As to the statement that the Standard is controlled by less 
 than a dozen men, we would put this down as a lie direct, for it 
 is well known to everyone that the stockholders number over 
 six thousand, while each of the associated concerns likewise have 
 their general body of shareholders. 
 
■iwiiliiii^^SliiliiWi 
 
 IN THB 
 
 United States Circuit Court of Appeals 
 
 FOR THE SEVENTH CIEOUIT. 
 
 No, 1409 
 
 STANDARD OIL COMPAMY, Of Indiana. 
 
 Plaintiff in Error, 
 vs. 
 
 UNITED STATES OP AMERICA, 
 
 Defendant in Error. 
 
 Error to' tlie District 
 Court of the United 
 States for the Northern 
 Distriot of Illinoie, 
 Northern Division, 
 
 PETITION FOR REHEHRING. 
 
 CHARLES J. BONAPARTE. 
 
 Attorney General, 
 
 FRANK B. KELLOGG. 
 
 Special Assistant to the Attorney General, 
 
 EDWIN W. SIMS. 
 
 ITsited Ststea Attorney, 
 
 JAMES H. WILKERSON, 
 
 Special Assistant U. S. Attorney, 
 
 Attoraeys for the United States. 
 
 avirTHoir-WAiBm rtimvia oOm cbicmo 
 
IN THE 
 
 United States Circuit Court of Appeals 
 
 FOR THE SEVENTH CIReUIT. 
 
 No. 1409 
 
 STANDARD OIL COMPANY, Of Indiana, 
 
 vs. 
 
 Plaintiff in Error, f Error to the District 
 
 Court of the United 
 
 ^ States for the Northern 
 
 District of ItliDoia, 
 
 UNITED STATES OF AMERICA, » Northern Division. 
 
 Defendant in Error. 
 
 PETITION FOR REHEARING 
 
 In accordance with the rule of this court, the defend- 
 ant in error, the United States, presents its application 
 for a rehearing. 
 
 To make plain the grounds upon which this applica- 
 tion is based, it is necessary to restate in outline the 
 issues involved, and to consider the position in which 
 the case is left by the decision of the court. 
 
 In the indictment the plaintiff in error, the Stand- 
 ard Oil Company of Indiana, was charged with viola- 
 tions of Section 1, of the Act of February 19, 1903 
 (known as the Elkins' Act) making it unlawful for any 
 person or corporation, "to offer, grant, or give or to 
 
solicit, accept, or receive any rebate, concession, or dis- 
 crimination in respect of the transportation of any 
 property in Interstate or foreign commerce * * * 
 whereby any such property shall by any device what- 
 ever be transported at a less rate than that named in 
 the tariffs published and filed by such carrier, as is 
 required by said act to regulate, commerce and the 
 acts amendatory thereto, or whereby any other advan- 
 tage is given or discrimination practiced." The pen- 
 alty provided for each violation is a fine of from one 
 to twenty thousand dollars. 
 
 The great object of this legislation, in harmony with 
 which it is to be interpreted and applied, was to 
 strengthen the Interstate Commerce Law as it then 
 existed, to destroy railroad favoritism and to put an 
 end to conditions which threatened to involve the nation 
 in a serious industrial confiict. Referring to the pur- ■ 
 pose to accomplish which this legislation was enacted, 
 this court in its opinion in the case at bar said : ' ' Coun- 
 sel for the government say, in concluding their brief, 
 that the Elkins Act was passed because the peace of so- 
 ciety and the welfare of the people demanded it; that 
 railroad inequality means business ruin to all except 
 those powerful enough to make themselves the benefi- 
 ciaries of the discriminations ; means the wiping out of 
 an industry, of a town, of a city, at the command of an 
 officer of a private corporation ; that railroad inequality 
 is the basis of monopoly, and the wrongful concentra- 
 tion of wealth; that no law of more vital importance 
 was ever passed by Congress ; and that those guilty of 
 violating it, are guilty of a serious crime against the 
 principles of industrial freedom and equality. Every 
 sentence of that arraignment is true." 
 
We request the court to give consideration again to 
 the purpose which Congress had in mind in the passage 
 of this law, for it has a vital relation to the construc- 
 tion to be placed upon the statute — a relation to which 
 we respectfully but earnestly submit due weight has not 
 been given in the opinion of the court, particularly in 
 that portion which deals with actual knowledge of the 
 lawful rate as an element of the offense on the part of 
 the shipper. 
 
 In Holy Trinity Church v. Z7. 8., 143 U. S., 457, 463, 
 the Supreme Court said : "Another guide to the mean- 
 ing of a statute is found in the evil which it is de- 
 signed to remedy; and for this the court properly 
 looks at contemporaneous events, the situation as it 
 existed and as it was pressed upon the attention of the 
 legislative body." 
 
 In Armour Packing Co. v. V. S., 209 U. S., 56, 72, the 
 court speaking of the Elkins Act said : ' ' This act is not 
 only to be read in the light of the previous legislation, 
 but the purpose which Congress evidently had in mind 
 in the passage of the law is also to be considered. ' ' 
 
 It is a part of our national history that the Inter- 
 state Commerce Act of 1887 was the result of a sweep- 
 ing protest against railroad favoritism. As stated by 
 Mr. Justice White in New Haven R. R. v. Interstate 
 Commerce Com., 200 U. S., 361, 391, "It cannot be 
 challenged that the great purpose of the Act to 
 Eegulate Commerce, whilst seeking to prevent unjust 
 and unreasonable rates, was to secure equality of rates 
 as to all, and to destroy favoritism, these last being 
 accomplished by requiring the publication of tariffs and 
 by prohibiting secret departures from such tariffs and 
 
forbidding rebates, preferences and all other forms of 
 undue discrimination. To this extent and for these 
 purposes the statute was remedial, and is therefore 
 entitled to receive that interpretation which reason- 
 ably accomplishes the great public purpose, which it 
 was enacted to subserve. * * * What was that pur- 
 pose? It was to compel the carrier as a public agent 
 to give equal treatment to all." 
 
 It is also part of our national history that the In- 
 terstate Commerce Act as originally enacted fell far 
 short of accomplishing its purpose. The result was 
 that the evils of railroad favoritism continued to in- 
 crease. In the meantime there had grown a demand 
 stronger and more insistent than the one which had 
 preceded the passage of the original Interstate Com- 
 merce Act, that the law be strengthened so as com- 
 pletely to destroy favoritism on the interstate high- 
 ways of Commerce. The nation had come to under- 
 stand the meaning of railroad inequality. It Ijecame 
 known and understood that the groups of enormously 
 rich men who controlled the railroads also owned and 
 controlled the corporations into the hands of which it 
 had fallen many of the great industries of the coun- 
 try. The people began to see that through this com- 
 munity of interest these industrial corporations were 
 receiving rates from the railroads so low in compari- 
 son with those given to the general public that they 
 were able to destroy competition. After competition 
 had been annihilated these secret low rates were still 
 continued. The railroads did not dare make publica- 
 tion of these low rates, or file them, as required by law 
 with the Interstate Commerce Commission, even in 
 
the case where an industry was in the hands of a 
 single great shipper, and no other shipper had any in- 
 terest in the rate on the particular commodity, for the 
 reason that upon the publication of the rate it would 
 at once appear that in comparison with it the 
 rates which were exacted from the shippers of other 
 commodities were unreasonably high. The publication 
 of these rates would have resulted also in protests 
 from those stockholders of the railroad company who 
 were not beneficiaries of the rate given to the favored 
 industrial corporation. 
 
 One of the excuses, and perhaps the principal ex- 
 cuse made by the carriers for their failure to obey the 
 law was that the railroad employe who gave rebates 
 •was made a criminal by the statute, while the shipper 
 who accepted them was not subject to any penalty. 
 It was urged that some railroads, yielding to condi- 
 tions of business necessity brought about through 
 competition, would under the pressure of circum- 
 stances take their chances on escaping punishment 
 and grant rebates; and that to avoid financial dis- 
 aster, and in many cases bankruptcy, their competi- 
 tors were forced to do the same. It was apparent that 
 to make the law practically efficient it was necessary 
 not only to provide for punishing the corporation it- 
 self which had violated the law, but also to impose 
 equally upon both carrier and shipper the duty of ad- 
 hering to published and filed schedules, and to make 
 both alike subject to punishment if they departed 
 from them. 
 
 In furtherance of these objects Congress passed the 
 Elkins' Act. It was not designed to weaken the In- 
 
6 
 
 terstate Commerce Act, and to make it practically im- 
 possible of enforcement. Its purpose was to make 
 more effective the provisions for destroying favorit- 
 ism, to provide punishment not alone for the clerk of 
 the carrier, who, under orders and at the peril of los- 
 ing his position committed violations of the law, but 
 also for the true offender, the corporation for whose 
 real or imagined benefit the law was violated; to put 
 shipper and carrier on the same footing with respect 
 to adherence to published and filed schedules, and to 
 provide punishment for a shipper (whose duty even 
 under the old law as pointed out by the Supreme 
 Court — Texas and Pacific R. R. v. Abilene Cotton Oil 
 Co., 204 U. S., 426-447 — it was to ascertain the pub- 
 lished rate) who, in any way, directly or indirectly ac- 
 cepted a rebate or a concession. In the Abilene Cot- 
 ton Oil Co. case Mr. Justice White said that the Elkins 
 Act "had the direct effect of strengthening and mak- 
 ing, if possible, more imperative the provisions of the 
 act requiring the establishment of rates and the ad- 
 hesion by both carriers and shippers to the rates as 
 established until set aside in pursuance of the pro- 
 visions of the act." And in the Armour Packing Co. 
 case speaking of the Elkins* Act, the Supreme Court 
 said: "In this act we find punishment by imprison- 
 ment abolished and shipper and carrier are placed 
 upon a like footing." 
 
 We respectfully urge the court to give further con- 
 sideration to the purpose back of this legislation, for 
 in the light of that purpose there is an added mean- 
 ing to the rule laid down in the Armour Packing Co. 
 case that shipper and carrier were placed upon the 
 
like footing by the act — a principle which in the con- 
 struction of the statute, this court in its opinion in 
 terms rejects. 
 
 There is another reason why it seems to us that with 
 propriety we may request this re-examination. The 
 court states in its opinion that it has reviewed all the 
 propositions of law which are deemed essential to the 
 guidance of the trial judge in the event of a second 
 trial. Of all the questions involved in this case, the 
 court finds in the proceedings up to the verdict of 
 guilty, substantial error on but a single point — that 
 relating to the construction of the statute as to 
 knowledge and intent as elements of an offense by the 
 shipper. The other points as to which it is held the 
 trial court erred relate to the amount of the penalty 
 and, if finally held to be well taken, may be corrected 
 either by the reviewing court itself or by the lower 
 court, without the necessity of another trial. 
 
 Let us consider briefly just what was involved in 
 this case and to what extent the position of the prose- 
 cution has been sustained by this court. It was 
 charged and proved that the Chicago & Alton Eailway 
 Company transported for the Standard Oil Company, 
 on different dates between September 1, 1903, and 
 March 1, 1905, 1462 car loads of petroleum. In the 
 dealings between carrier and shipper relating to the 
 transportation of the property, the shipment of each 
 car load was treated as a distinct tr^ansaction, and car- 
 ried through and settled for as a distinct item. 
 In fact, it was conceded by the counsel for the plain- 
 tiff in error in the lower court that the evidence did 
 
8 
 
 not show that in the dealings between the parties more 
 than one car was treated as embraced in the same 
 shipment. (Kec, 902.) A part of the cars moved 
 from Whiting, Indiana, to East St. Louis, Illinois; 
 the remainder to St. Louis, Missouri. From Whiting, 
 Indiana, to Chappell, Illinois, the cars were hauled by 
 the Terminal Transfer Railroad Company ; from Chap- 
 pell to East St. Louis, over the tracks of the Chicago 
 & Alton Railway Company and at East St. Louis those 
 cars going to St. Louis were transferred by one of the 
 bridge or ferry companies. All the arrangements as 
 to transportation and the settlements for the freight 
 were made with the Alton for the entire distance. 
 
 The schedules published by the Alton and filed with 
 the Interstate Commerce Commission named a rate 
 on petroleum and its products of 18 cents per 100 
 pounds to East St. Louis, and 19-J- cents to St. Louis. 
 These were the schedules generally distributed by the 
 road, and kept open at its offices and stations for pub- 
 lic inspection. The way-bills issued in connection with 
 the transportation of this property named these rates 
 of 18 and 19^ cents respectively as the rates which 
 were charged by the carrier and which were to be 
 paid by the shipper, with the exception of shipments 
 during a period of a few months when rates of 10 and 
 11| cents respectively were shown on the way-bills. 
 
 The freight was actually settled for by the Standard 
 Oil Company on the basis of 6 cents per 100 pounds 
 to East St. Louis and 7^ cents to St. Louis. If 18 
 and 19^ cents per 100 pounds were the lawfully pub- 
 lished and filed rates, the demonstration was absolute 
 
that a concession was given by the railroad company, 
 and accepted by the shipper, amounting to the differ- 
 ence between what should have been paid on that 
 basis and what was in fact paid. 
 
 In justification of its conduct with reference to this 
 transportation the Standard Oil Company interposed 
 a long array of defenses, ranging from an attack upon 
 the validity of the statute to the most refined and tech- 
 nical points as to- variance. It was contended in de- 
 fense that the statute was void because it was an inva- 
 sion of the constitutional right of the shipper to make 
 a private contract for a railroad rate applicable to in- 
 terstate transportation; because it involved an im- 
 proper delegation of both the legislative and judicial, 
 powers of the government ; and because shippers were 
 improperly deprived of their right to resort to the 
 courts. It was also contended in defense that the 
 transportation by the Alton was intrastate and not 
 interstate in character; that the Alton as to this trans- 
 portation was not a carrier subject to the Interstate 
 Commerce Acts; that the tariffs relied upon by the 
 Government as naming the lawful rate, had not been 
 posted in two places at its stations but were kept 
 in tariff files at the stations in charge of an agent and 
 open to public inspection only on application; that 
 as to the transportation to St, Louis the Alton had 
 no railroad route, within the meaning of the act; that 
 the 18 and 19^- cent rates were in fact unreasonable 
 rates and established in violation of the Sherman 
 Anti-trust Law ; and that the proof at the trial varied 
 in substantial respects from the averments of the in- 
 dictment. 
 
10 
 
 On none of these important questions has this court 
 criticised or modified the .rulings of the trial judge 
 for guidance at another trial. And while it would 
 have been helpful in the application of this statute, 
 both in this case and in other cases in this circuit, 
 and it seems to us highly appropriate, that this court 
 in its opinion should have given its affirmative ex- 
 pression of its approval of the rulings of the trial 
 judge, yet the failure to criticise those rulings upon 
 points which were absolutely essential to the govern- 
 ment's case must be taken as an affirmance of the rul- 
 ings on those points. 
 
 The only point, as we have stated, as to which the 
 rulings of the trial judge, prior to the verdict of guilty 
 are criticised, relates, to use the language of the opin- 
 ion, ' ' to the view adopted by the trial court, carried out 
 in its rulings on the admission and exclusion of evi- 
 dence, and embodied in its charge to the jury, that a 
 shipper can be convicted of accepting a concession 
 from the lawfully published rate, even though it is not 
 shown, as bearing on the matter of intent, that the 
 shipper, at the time of accepting such concession, knew 
 what the lawfully published rate actually was." 
 
 In another portion of the opinion the question is 
 stated to be, "whether a shipper can, without error, 
 be convicted of accepting a concession from the law- 
 ful published rate, even if it is not shown, as bearing 
 on the matter of intent, that the shipper, at the time 
 of accepting such concession, knew what the lawful 
 published rate actually was." 
 
 It was claimed by the defense that the Standard 
 Oil Company did not actually know that 18 cents was 
 
11 
 
 the lawful rate to East St. Lonis, applicable to these 
 transactions; that its traffic manager, E. Bogardns, 
 had applied to F. S. Hollands, the rate clerk of the 
 Alton, for a rate on oil between the points in ques- 
 tion, and in response to his inquiry had been given 
 a paper naming a 6 cent rate on oil to East St. Louis, 
 and had been told that "the rate had been filed." This 
 contention, based principally upon the testimony of 
 Bogardus, was met by a series of facts and circum- 
 stances tending strongly to disprove his claim that 
 he had made the pretended inquiry, and that he was 
 misled by anything which took place between himself 
 and Hollands. 
 
 It appeared that Bogardus was an experienced rail- 
 road man. It was almost inconceivable that the 
 Standard Oil Company should have been ignorant of 
 Tariff No. 24, the tariff naming the 18 cent rate, a 
 tariff which must have been used in its department 
 in which shipments of less than a carload were 
 handled. The 6 cent billing orders bore no Inter- 
 state Commerce Commission numbers, and thus indi- 
 cated, on their face, that they were not intended to be 
 filed with the Interstate Commerce Commission. The 
 application tariff applying Chicago rates to Whiting, 
 and which it was conceded, came into the possession 
 of the Standard Oil Company, contained a specific 
 reference to Tariff No. 24. Not a single way bill 
 was made out by the railroad company at the G cent 
 rate. The statements of billing which went to the 
 Standard Oil Company referred to these way bills, 
 and in some cases showed that the way bills were 
 made out at the 18 cent rate or at a rate of 10 cents. 
 Only a few copies of the 6 cent billing order were 
 
12 
 
 made out by the railroad company, and with the ex- 
 ception of the one sent to the Standard Oil Com- 
 pany, these copies remained in the possession of the 
 traffic officials and at the general freight office. Not 
 a single copy of the 6 cent billing order was sent to 
 an office or station where freight was received for 
 transportation from the public. 
 
 The attitude of Bogardus at the trial raised a grave 
 question as to the credibility of his testimony. When 
 this most important matter was first brought to his 
 attention he made no claim that he had ever had a 
 conversation with Hollands such as the one to which 
 he finally testified. He admitted that he had never 
 said to anyone connected with the case, although for 
 months he had been in consultation with reference to 
 the preparation of the defense, that he had such a con- 
 versation with Hollands, until the moment he testified 
 in court. He pretended to have had the same evasive 
 and ambiguous conversation with Hollands on three 
 different occasions, a year apart, at which precisely 
 the same language was used with reference to the 
 filing of the 6 cent rate. His failure to make any 
 further inquiry after he had in his possession the 6 
 cent billing order which bore no Interstate Com- 
 merce Commission number, and after he had the ap- 
 plication tariff which contained a specific reference 
 to tariff No. 24, tended strongly to show, to say the 
 least, that he had been negligent in not availing him- 
 self of the sources of information which were open to 
 him. 
 
 The trial judge in connection with the admission of 
 evidence, and in charging the jury, ruled that under 
 the statute it was the duty of the shipper, in good 
 
13 
 
 faith, and with diligence, to endeavor to ascertain from 
 tlie carrier the lawful rate by applying at one of its 
 offices or stations; that in law the shipper is charge- 
 able with knowledge of that which he would have as- 
 certained through such inquiry, and will not be per- 
 mitted to avail himself of the defense of ignorance 
 where that ignorance is the result of negligence or the 
 willful failure to resort to the sources of information 
 which are available. 
 
 Applying this construction of the statute, he stated 
 in his charge to the jury: "If you believe from the 
 evidence, beyond a reasonable doubt, that such en- 
 deavor on the part of the defendant would have en- 
 abled it to ascertain the lawful rate, as I have de- 
 fined the lawful rate to you in these instructions, and 
 that the defendant did not make the endeavor in good 
 faith, such failure on defendant's part will not ex- 
 cuse defendant, and you will find it guilty on those 
 counts of the indictment, if any, which under these 
 instructions you find sustained by the evidence. If, 
 on the other hand, you have a reasonable doubt as to 
 whether such endeavor would have made the lawful 
 rate known to the defendant, or if you believe from 
 the evidence that by such endeavor the defendant 
 would not have ascertained the lawful rate, you will 
 find the defendant not guilty". 
 
 Thus the questions whether the defendant had en- 
 deavored, in good faith, and with diligence, to as- 
 certain the lawful rate, and whether the result of 
 such inquiry would have enabled the defendant to as- 
 certain the rate, were left with the jury, as questions 
 of fact, and their finding was against the defendant. 
 
14 
 
 In this connection we respectfully call the atten- 
 tion of the court to the fact that the criticism of the 
 ruling of the trial judge upon this point proceeds 
 upon a misapprehension of what evidence was in fact 
 submitted to the jury, as shown by the record. 
 
 In the opinion of the court it is stated that the trial 
 judge excluded "certain proffered testimony, in- 
 cluding that of one Edward Bogardus, who, being 
 in absolute charge of the traffic affairs of the plaintiff 
 in error during the period covered by the transaction, 
 offered to testify that during that period he did not 
 know anything about an 18 cent rate over the Alton 
 railroad; that his attention had never been called to 
 any such rate by any person, or by the examination of 
 any document; and that it was his understanding and 
 belief, based on what he was told by one Hollands, 
 tariff clerk for the Alton Eailroad, that the rate over 
 the Alton road was 6 cents; and that such rate had 
 been filed with the Interstate Commerce Commission." 
 
 In this connection, we would direct the attention of 
 
 the Court to the record (page 423), where it appears 
 
 that the witness Bogardus was permitted to testify as 
 
 follows : 
 
 "During the years I have mentioned, 1901, 1902, 
 1903, 1904 and 1905, I did not know anything 
 about an 18 cent per hundred rate on oil over the 
 Chicago & Alton Railway Company between Whit- 
 ing and East St. Louis in any tariff whatever. My 
 attention had never in any way been called to 
 such a rate by any human being, or by the examina- 
 tion of any document of any kind or character 
 or otherwise. During the period of time men- 
 tioned, it was my understanding and belief that 
 this 6 cent rate regarding which I have testified, 
 
15 
 
 was filed with the Interstate Commerce Commis- 
 sion; that understanding and belief was based on 
 what I was told in the Chicago & Alton office by 
 Mr. Hollands. During all that period of time, in 
 connection with the shipment of oil over the Chi- 
 cago & Alton Kailway Company by the Standard 
 Oil Company of Indiana, as its representative in 
 that particular work, I had no intention to vio- 
 late any lawful established rate of the Chicago 
 & Alton Railway Company. During all that time 
 I believed absolutely that I was shipping the oil 
 under the lawfully established and filed rate is- 
 sued by the Chicago & Alton Railway Company." 
 
 This testimony, together with the evidence of Bo- 
 gardus as to his conversations with Hollands, was sub- 
 mitted to the jury with all the other facts and circum- 
 stances of the case, and it was left for them to say 
 whether due inquiry to ascertain the rate had been 
 made, and whether such inquiry would have resulted 
 in information asto the facts. 
 
 In this connection we respectfully submit that Mr. 
 Boga'rdus was not the defendant in this case, and that 
 even want of knowledge on his part does not neces- 
 sarily show that the defendant did not have knowl- 
 edge. The defendant corporation was bound to take 
 notice of the statements on the tariffs coming into its 
 possession, and the statements of billing and other 
 documents relating to these transactions which came 
 into its office, whether Bogardus saw them or did not 
 see them. 
 
 Reference is made in the opinion to another matter 
 concerning these tariffs as to which we respectfully 
 direct the attention of the court again to the record. 
 
 In speaking of the evidence bearing on the intent 
 
16 
 
 of the shipper to violate the law, this court states that 
 Bogardus "knew that in 1903 there were in force on 
 the Alton Eoad, 386 commoQity tariffs ,of the same 
 character as the 6 cent tariff which he was told was the 
 commodity tariff on petroleum and its products, and 
 in 1904 and 1905 even a larger number of such com- 
 modity tariffs." 
 
 It appears from the record (page 454) that these 
 special billing orders relating to the rate on petroleum 
 were the only tariffs of that character from Chicago 
 as to which it appeared on the face of the tariffs that 
 the settlements were made through the auditor's of- 
 fice. 
 
 Nor was there any showing at the trial that any 
 other unfiled tariff of this character was ever ap- 
 plied by the railroad company on interstate business. 
 Hollands attempted to make a general statement to 
 that effect but when called upon he was unable to give 
 a single instance in which one of these unfiled tariffs 
 was applied to interstate business. 
 
 In this connection it must be remembered that these 
 6 cent tariffs were not kept at the Chicago freight 
 station nor at any other office or station where freight 
 was received for transportation, nor were they dis- 
 tributed to any shipper except to the Standard Oil 
 Company. 
 
 There is absolutely no evidence in the record that 
 Bogardus had ever seen or knew anything about any 
 of these commodity tariffs, except the six cent oil 
 tariff. 
 
 Again commenting upon these tariffs, this court says 
 that: "all that prevented the trial court from hold- 
 
17 • 
 
 ing, as a matter of law, that a 6 cent rate upon petro- 
 leum and its products was a lawful commodity rate, 
 was that, technically, the filing with the commission 
 of the application sheets upon which that proposed 
 commodity rate appeared, was not, in the trial court's 
 opinion, the filing of the tariff within the requirements 
 of the law." 
 
 We respectfully submit that it is not accurate to 
 say that the proposed commodity rate appeared upon 
 the application sheets. On the contrary, there was 
 absolutely no reference whatever to these commodity 
 tariffs on the application sheets ; but on these applica- 
 tion sheets which Bogardus admits came into his pos- 
 session, there was a specific reference to tariff No. 24, 
 the tariff naming the 18 cent rate. The commodity 
 tariff bore no Interstate Commerce Commission num- 
 ber, thus indicating to anyone at all familiar with 
 railroad matters, that it was not intended to be filed 
 with the Interstate Commerce Commission, and it was 
 not intended to be used as to interstate business. So 
 that directly or indirectly there was absolutely no 
 reference in the application sheets to the 6 cent com- 
 modity tariffs. 
 
 The most important question, however, bearing on 
 this branch of the case as to which we ask a re-argu- 
 ment, is the correctness of the consti action of the 
 statute- as embodied in the charge of the trial judge 
 to the jury holding that the statute imposes a duty 
 upon the shipper to use diligence in ascertaining the 
 lawful rate, and that ignorance is no defense where 
 such ignorance results from failure to make the dili- 
 gent inquiry required by law. 
 
18 
 
 This court, in its opinion, says: "Of course if this 
 view of the law is sound the action of the court, in its 
 ruling upon the evidence offered as well as its charge, 
 is without error". 
 
 Holding the construction of the trial judge to be er- 
 roneous, this court apparently has laid down the rule, 
 to use the language of the opinion, that it is incum- 
 bent on the Government "to establish, before a ship- 
 per can be held guilty of accepting a concession from 
 the lawful, published rate, that the shipper had knowl- 
 edge of what the lawful, published rate was." 
 
 This brings us face to face with a proposition of 
 vital importance in the application and enforcement 
 of the Interstate Commerce Acts. May a shipper ac- 
 cept a concession, and when called to account in a crim- 
 inal prosecution, sit by and require the Government 
 to prove, beyond a reasonable doubt, actual knowl- 
 edge on his part of the elements necessary to make a 
 lawful rate? Or does the law impose some duty upon 
 a shipper? May not the requirement of knowledge 
 be met by proof of that which, in law, is the equiva- 
 lent of knowledge? May a shipper successfully plead 
 ignorance of the lawful rate, when that ignorance is 
 the result of his own negligence or of his failure to 
 avail himself of the sources of knowledge at his com- 
 mand? Is the statute to be treated as an exception 
 to the general rule of criminal law that if ignorance 
 of fact is set up) "the defense is unavailable, where 
 the defendant, by exercise of due diligence, could have 
 become aware of his mistake." (1 Wharton on Crim- 
 inal Law, p. 115.) If the Government in a prosecu- 
 tion under this statute, is held to the strict 
 
19 
 
 requirement of proving, in the first instance, actual 
 knowledge on the part of the shijDper of the elements 
 necessary to make a lawful rate, what must the Gov- 
 ernment show to make out its easel 
 
 The statute requires adherence to the published and 
 filed schedule. Under this rule, it is necessary to 
 show that the shipper actually knew, not only that the 
 rate was published, but that the shipper had actual 
 knowledge that the schedule naming it was on file with 
 the Interstate Commerce Commission. Is it possible 
 that a case would ever arise where this requirement 
 could be met? We respectfully submit that such an 
 interpretation of the statute is not in harmony with 
 the purpose of the legislation which we have pointed 
 out above. 
 
 It is our contention that, as is stated by the Su- 
 preme Court in the Abilene Oil Company case, the 
 law imposes upon a shipper the duty of seeking to 
 inform himself as to the lawful rate; that ignorance 
 of the rate is no defense when it results from the negli- 
 gence of the shipper ; that proof that the shipper by the 
 exercise of diligence could have obtained the informa- 
 tion is the equivalent of proof of actual knowledge. 
 
 It is said by this Court, in its opinion, that such a 
 rule as that adopted by the trial judge, would work 
 a hardship upon the small shipper who brings his pro- 
 duce to the market or moves his household furniture 
 because he might be made guilty of having accepted, 
 a concession, merely because he took the word of the 
 carrier, or its agent, as to what the rate was, and 
 accepted such a rate stated in the honest belief that 
 it was in fact the regular, established rate. Does this 
 
20 
 
 fairly state the ruling of the trial judge! Holding 
 that the law imposes upon the shipper the duty to seek 
 information as to the lawful rate, the trial judge ruled 
 (Rec. 409) that the defendant might show "that the 
 rate at which it shipped its property was published 
 by the railway company, and that the railway com- 
 pany in response to the defendant's inquiry as to the 
 filing of the schedule with the Interstate Commerce 
 Commission induced the defendant to innocently be- 
 lieve, in good faith, that the Alton Company had filed 
 the rate with the Interstate Commerce Commission, 
 it being for the jury to say whether such testimony 
 exhibits the truth of the transaction." 
 
 Bogardus was permitted to state all of the facts 
 with reference to his inquiry at the ofiSce of the Al- 
 ton, and the entire question of the diligence of the 
 inquiry and whether due inquiry would have resulted 
 in knowledge, was left to the jury. Its verdict in this 
 case, where all the circumstances pointed to collusion 
 between the shipper and the carrier, was against the 
 defendant. Under a different state of facts the jury 
 might have found that the shipper had made a diligent 
 inquiry and was innocently misled by the information 
 received at the office of the railroad company. After 
 all then is not the danger to the small shipper, under 
 this rule, imaginary rather than real I 
 
 We do not believe the rule invoked by the trial 
 court would work a hardship upon the small shipper 
 who brings his produce to market or moves his house- 
 hold furniture. The question is one of fact in each 
 case to be submitted to the jury. What would be rea- 
 sonable diligence in the case of a farmer or a small 
 
21 
 
 shipper bringing his produce or household furniture 
 to the railway to be shipped, with little opportunity of 
 finding out what the legal tariff rate was, would not 
 be reasonable diligence on behalf of the large shipper 
 shipping thousands or hundreds of thousands of car- 
 loads a year, with a traffic department of able and 
 painstaking men. Circumstances which would not be 
 sufficient to bring notice to a farmer or a small shipper, 
 inexperienced in railway traffic and tariffs, must be 
 sufficient under other circumstances to bring notice 
 to the Standard Oil Company with alt its facilities for 
 knowledge of rates. What we do say is that no ship- 
 per has a right to close his eyes to circumstances tend- 
 ing to place him upon inquiry and tending to give him 
 notice. 
 
 And even if the statute, construed in harmony with 
 its purpose, and so as to reach the evils at which it 
 was aimed, does result here and there in an apparent 
 hardship, is it in that respect different from many 
 other statutes? The great evils at which the Act was 
 aimed did not grow out of the misdeeds of the house- 
 holder or little shipper, but out of the acts of great 
 industrial corporations, which through their dictation 
 of the management of railroad companies were by 
 means of a system of favoritism and discrimination 
 building up gigantic monopolies and threatening the 
 preservation of industrial freedom. To require proof 
 of actual knowledge against such a concern, with its 
 complete business organization, with its secret depart- 
 ments and blindfolded traffic managers, to impose upon 
 it no duty to inquire as to the lawful rate, and yet to 
 permit it to interpose successfully a defense based 
 upon ignorance, is to make of the law a mere will o' 
 
22 
 
 the wisp of legislation, a phantom statute destitute 
 of strength or substance. 
 
 It is true that the statute is for all shippers alike, 
 and yet is a construction highly promotive of the gen- 
 eral good and in furtherance of the purpose of the 
 act to be rejected because here and there in improb- 
 able cases it may result in hardship, upon individuals! 
 Is this court willing to permit the rule as stated in the 
 opinion to remain as its last word on this far-reaching 
 proposition! 
 
 There is another reason why we respectfully sub- 
 mit that this court in its opinion has not stated ac- 
 curately the position of the trial judge on this ques- 
 tion of knowledge. It is said that the trial judge was 
 doubtless influenced by judicial holdings in cases un- 
 der statutes against smuggling, the sale of liquors to 
 minors and other cases arising out of fiscal and police 
 regulations where penalties areenforcedwithoutregard 
 to knowledge or intent on the part of the violator, 
 where under the law ignorance of the facts is abso- 
 lutely no defense. This court assumes that the trial 
 judge applied this rule in the case at bar. This as- 
 sumption, however, seems to us unwarranted when 
 reference is had to the actual rulings of the trial 
 judge. The trial judge did not apply the same rule 
 in this case as is applied in cases of smuggling or the 
 sale of liquors to minors. He did not hold that the 
 shipper was bound to know at his peril what the pub- 
 lished and filed rate was. He expressly recognized 
 that ignorance of the legal rate would be a defense if 
 that ignorance did not result from the failure of the 
 defendant to make a diligent inquiry to ascertain the 
 
23 
 
 rate. He applied in this case a rule which, as Mr. 
 Wharton in his work on Criminal Law, says (Vol. 1, 
 P. 115) is generally applicable in criminal cases where 
 knowledge or intent must be shown, except where the 
 statute makes a particular intent essential to the of- 
 fense. Now in the Armour Packing Company case, the 
 Supreme Court ruled that in cases arising under this 
 statute it is not necessary to show an intent involving 
 turpitude or moral wrong, but that purposely doing the 
 thing prohibited by statute may amount to an offense 
 although the act does not involve moral turpitude. The 
 trial judge went as far in permitting the plea of ig- 
 norance on the part of the shipper, as was possible 
 for him to go without requiring the government to 
 show beyond a reasonable doubt, as a part of its own 
 case, that the shipper had actual knowledge of the 
 facts with reference to the lawful rate — a construc- 
 tion of the statute which we earnestly contend cannot 
 be entertained. 
 
 It is said that the propostions are laid down for the 
 guidance of the trial judge at another trial. Are we 
 to understand that this court has stated what, in its 
 opinion is the complete rule on the subject of knowl- 
 edge 1 Should anything be added as to the duty of the 
 shipper'? Is there absolutely no duty? Is ignorance 
 based on negligence a defense? Does willful rejec- 
 tion of the sources of knowledge at hand furnish im- 
 munity from prosecution? Is nothing to be said as to 
 the language of the Supreme Court in the Abilene Oil 
 case to the effect that even under the old law it was the 
 duty of the shipper to ascertain the lawful rate? Even 
 if this court should adhere to its position that the rule 
 as stated by the trial judge is erroneous we respect- 
 
fully ask that the case be opened for re-argument, in 
 order that this court may make its ruling on these im- 
 portant propositions, as to which the opinion is silent. 
 
 There is another reason why it seems to us that 
 this application for a re-argument should appeal to 
 the court. In the Armour Packing "Company case, the 
 Supreme Court expressly stated this question of 
 knowledge and intent as elements of the offense by a 
 shipper. The court said: "While intent is in a cer- 
 tain sense essential to the commission of a crime, and 
 in some classes of cases it is necessary to show moral 
 turpitude in order to make out a crime, there 
 is a class of cases within which we think, the 
 one under consideration falls, where purposely 
 doing a thing prohibited by the statute may 
 amount to an offense, although ■ the act does 
 not involve turpitude or moral wrong. In this 
 case the statutes provide it shall be penal to receive 
 transportation of goods at less than the published rate. 
 Whether shippers who pay a rate under the honest 
 belief that it is the lawful established rate, when in 
 fact it. is not, are liable under the statute because of 
 a duty resting on them to inform themselves as to the 
 existence of the elements essential to establish a rate 
 as required by law, is a question not decided because 
 not arising on this record." 
 
 The very question raised in the Armour case, as 
 stated by this court in its opinion, is recognized as the 
 question involved in the case at bar. 
 
 The Supreme Court, stating the question in the Ar- 
 mour Packing case did not answer it, because it was 
 not there involved. It is true it did not answer the 
 
question in favor of the position of the government; 
 it is equally true that it did not decide' the question 
 against the contention of the government and in such 
 a way as to impair the practical efficiency of the law 
 in its application to shippers. 
 
 The statute creating this court provides that the 
 court, at any time, may certify to the Supreme Court 
 of the United State any questions or propositions of 
 law concerning which it desires the construction of 
 that court for its proper decision. 
 
 Here is a question involving in a vital particular 
 the construction of an important statute, to enforce 
 which suits are pending in practically evei-y circuit of 
 the United States. It is a question upon which, as this 
 record shows, learned and eminent judges differ. It is 
 a question expressly left open by the Supreme Court. 
 Under these circumstances, we respectfully suggest the 
 propriety of re-opening the case in order that this 
 court, if not disposed to modify its views already ex- 
 pressed, may certify this question to the Supreme 
 Court, to the end that a final decision of this import- 
 ant question may be obtained. Would it be possible to 
 find a question as to which there could be stronger 
 reasons for certification to the Supreme Court? And 
 before the government is required to try this case 
 under the rigid rule of construction laid down by this 
 court, is it not manifestly fair and right, in the in- 
 terest not only of justice in this case, but in the in- 
 terest of a final and definite construction of this im- 
 portant statute, that judgment be taken of the highest 
 tribunal of the nation? 
 
 There remains to be added on this branch of the case 
 
26 
 
 a word concerning two of the rulings of the trial judge 
 as to the admission of evidence. One of these rulings 
 was the exclusion of the evidence as to the alleged 
 6| cent lawful rate over the Chicago & Eastern Illi- 
 nois railroad. 
 
 It is stated in the oioinion that this ruling of the 
 trial judge was correct if the construction of the 
 statute, as set forth in the charge to the jury, is cor- 
 rect. Is this evidence admissible even under the con- 
 struction of the statute as stated in the opinion of this 
 court? Assuming that the government has complied 
 with the rule laid down in the opinion and has shown 
 that the shipper had actual knowledge as to what the 
 lawful rate was, can it be any defense that the ship- 
 per also had actual knowledge that there was a lower 
 lawful rate between the same points over another rail- 
 road? The question would seem to be its own answer. 
 In other words, the evidence being concededly inad- 
 missible under one construction of the statute, can it 
 have any possible relevancy under the other? 
 
 It is also here proper to note that the lawful tariff 
 naming this 6 jc rate which the defendant claimed was 
 available over the Chicago & Eastern Illinois Eail- 
 road, was in fact cancelled by the railroad company 
 on the 8th of July, 1903, prior to the date of any of 
 the shipments in this case, and notice of such cancel- 
 lation given to the Standard Oil Company, and the 
 tariff renaming the rate was not filed with the Inter- 
 state Commerce Commission until after the shipments 
 in this case. (Rec, 783-4.) 
 
 The other ruling relates to the exclusion of the tes- 
 timony of Hollands as to what he probably would have 
 
27 
 
 said to Bogardus with reference to tlie filing of the 
 six cent rate. Eegardless of tlie construction to be 
 placed upon the statute, can this be called competent 
 evidence? Hollands had exhausted his recollection as 
 to these conversations. His mind was a blank as to 
 whether he had ever had the conversation testified to 
 by Bogardus, or as to whether he had ever said any- 
 thing to Bogardus on the subject of the filing of the 
 schedules. He was then asked to speculate, years after 
 the time of the alleged conversation, as to what he 
 might have said under circumstances concerning which 
 he did not have the slightest recollection. Is there 
 any authority which sustains the admission of evi- 
 dence of this character? Do not the text writers and 
 the cases agree that evidence of this character should 
 be excluded? 
 
 Another matter to which we respectfully direct the 
 attention of the Court is the language of the opinion 
 concerning the schedules naming the lawful 18 cent 
 rate. Speaking of railroad schedules, they are char- 
 acterized as "the confusing papers and figures that 
 generally make up the tariff sheet." And again the 
 schedules in this case are referred to as "a confused 
 mass of tariff sheets." In this characterization fully 
 justified by the facts? The schedules consist of one 
 document, naming class rates on certain clases of com- 
 modities between Chicago points named in the sched- 
 ule, another document containing a classification of 
 commodities and a third document applying Chicago 
 rates to Whiting. 
 
 Instead of a long list of commodities in each of the 
 schedules naming rates, there was method and system 
 
28 
 
 by referring to a classification of those commodities, 
 alphabetically arranged. Could anything simpler or 
 more systematic be devised, and may there be no effi- 
 cient Interstate Commerce law for the reason that be- 
 cause of the number of commodities for which rates 
 are to be provided, it is necessary to classify those 
 commodities, and to make reference to that classifica- 
 tion? 
 
 As stated in the opinion, the tariff sheets relied upon 
 in this case are in the general form of railroad sched- 
 ules. The defendant, at the trial, did not even insinu- 
 ate that it was in any way misled by the reference to 
 the Illinois clas3ification, or that is was ignorant of 
 the meaning of that classification — a classification made 
 pursuant to the Illinois statute, and with which every 
 shipper on a large scale must necessarily be familiar. 
 
 The Supreme Court in the Abilene Oil Company case 
 gave effect to schedules just like the one in this case, 
 and we respectfully submit that instead of being criti- 
 cised as confusing and circumlocutous, they should be 
 commended for having, to some extent, made system- 
 atic that which would otherwise be confusing. With 
 this in mind we respectfully request a reconsid- 
 eration of that portion of the opinion in which the court 
 has used the language referred to concerning these 
 tariff sheets. 
 
 As stated in the opinion there is but one proposi- 
 tion as to which this court holds the rulings of the trial 
 judge before the verdict to be erroneous. That ques- 
 tion is the one relating to knowledge and intent. The 
 other propositions relate to the amount of the penalty. 
 This court held in the first place that the defendant 
 
29 
 
 was punished for too many offenses, and in the second 
 place that the trial court had abused its discretion in 
 assessing the maximum penalty. 
 
 As to that portion of the opinion relating to the 
 number of the offenses we respectfully suggest that 
 the case should be opened for reargument, if for no 
 other reason in order that there may be a more definite 
 statement of the rule to be applied in determining ihe 
 number of offenses. Is the Court to be understood as 
 holding that the number of offenses is to be measured 
 by the number of settlements for freight, leaving it 
 to the shipper and carrier to elect for how many of- 
 fenses they may be prosecuted and thus fix the amount 
 of their own fines? Or is the acceptance of the 
 concession for each distinct shipment to be 
 treated as a separate offense, the settlement for the 
 freight when it covers more than one shipment being 
 treated as an element of as many offenses as there 
 are shipments! 
 
 In this connection we respectfully call the attention 
 of the court again to the decision in the Armour Pack- 
 ing Company case. One of the questions involved in 
 that case was the construction of that portion of the 
 statute providing that every violation of the statute 
 shall be prosecuted within the district in which it was 
 committed or through which the transportation was 
 conducted. In his oral argument of that case the At- 
 torney General said: 
 
 "This statute creates two separate and distinct 
 crimes, or classes of crimes, of which the one will 
 be naturally committed within a single district, 
 and the other, as I submit, may, and ordinarily 
 will, involve acts extending through two or more 
 
30 
 
 districts, the former constituting, in effect, an at- 
 tempt to commit the latter. The words 'offer' 
 and 'solicit' are correlative term^, applicable re- 
 spectively to the carrier and the shipper, and, as 
 an offer or a solicitation is necessarily an act com- 
 mitted when the party guilty of it and the party 
 to whom it is addressed arfe in communication with 
 each other, such an offense is ordinarily, if not in- 
 variably, one which, under the terms of the fur- 
 ther provision of the same section, would be prose- 
 cuted in that 'court of the United States having 
 jurisdiction of crimes within the district in which 
 such violation was committed.' On the other 
 hand, so much of the section as makes it a crime 
 for anyone either to 'grant or give' or to 'accept 
 or receive' constitutes an offense or offenses of a 
 different character, for obviously the shipper can- 
 not 'accept or receive' anything unless tlie thing 
 'accepted' or the thing 'received' has been, in fact, 
 'granted' or 'given' by the carrier; and it is no 
 less evident that what the law forbids the common 
 carrier to 'grant or give' is, in last resort, trans- 
 portation under circumstances or with incidents 
 involving favoritism to one shipper, or discrimina- 
 tion in his treatment as compared with the treat- 
 ment of other shippers. Unless the carrier gives 
 or grants transportation, in some form and to some 
 extent, it gives or grants nothing which it is pro- 
 hibited to give by the statute. Any negotiations 
 between the parties, even any executory agree- 
 ment between the parties, can amount at most only 
 to an 'offer' on one side or to a 'solicitation' on the 
 other, or to both, which are constituted crimes 
 by the preceding words, of the same clause. Until 
 the transportation has taken place, nothing has 
 been, in effect, given by the carrier or accepted 
 by the shipper ; and it follows that, until there has 
 been a transportation, the crime created by the 
 last four of the six prohibitory words above 
 quoted, although it may in the words of the stat- 
 ute have been 'begun', has not been, to again 
 
31 
 
 quote the statute, 'completed'. (32 Stat., 847). I 
 respectfully submit that when the Congress said : 
 'Whenever the offense is begun in one jurisdic- 
 tion and completed in another it may be dealt with, 
 inquired of, tried, determined and punished in 
 either jurisdiction in the same manner as if the 
 offense had been actually and wholly committed 
 therein', the Congress showed clearly that it un- 
 derstood it had, by this enactment, created a 
 crime against the (Jnited States, which might be 
 'begun' in one jurisdiction and 'completed' in 
 another; in other words, that the act or acts con- 
 stituted an olTense by a preceding provision of 
 the same statute contained an element which was 
 in its nature ambulant and involved necessarily 
 the idea of motion from one locality within one 
 jurisdiction to another locality which might be 
 within another jurisdiction. And I submit fur- 
 ther that, when, in the words immediately pre- 
 ceding those I have last quoted, the Congress 
 gave jurisdiction for the punishment of a crime 
 which it evidently understood had been created 
 by the other words of the act to 'any court of the 
 United States having jurisdiction of crimes with- 
 in the district * * * through which the trans- 
 portation may have been conducted,' the Con- 
 gress said, almost as plainly as if it had stated the 
 same in precise words, that this ambulant, mov- 
 able feature of the crime thus created was the 
 transportation 'given or granted' by the carrier 
 and 'accepted or received' by the shipper." 
 
 Sustaining the contention of the government in that 
 
 case the Supreme Court said: 
 
 "Having in view the offense charged in this 
 case, we think it is clearly within the terms of the 
 act making it penal to procure the actual transpor- 
 tation, by any of the means denounced in the Act, 
 of goods at a less rate than that named in the tar- 
 iffs. It is the purpose of the act to punish those 
 who give or receive transportation, in the sense 
 
32 
 
 of actual carriage, at a concession from the pub- 
 lished rates." 
 
 And in this connection as bearing upon the con- 
 struction of the statute, both with reference to knowl- 
 edge and intent and to the number of offenses, we 
 submit for the consideration of the court the language 
 of his honor Judge Grosscup (then District Judge 
 Grosscup) in the case of United States vs. Hanley, 71 
 Federal Eeporter, 672, 675, in which passing upon an 
 indictment under the original Interstate Commerce 
 Act, charging a departure from published schedules by 
 giving rebates, in which a rebate on a number of ship- 
 ments had been treated by the government as consti- 
 tuting one offense, it was said: 
 
 "The most serious objection to the indictment 
 thus considered is its apparent multifariousness; 
 that is, its compression into one charge of a series 
 of transactions. Each shipment, as affected by the 
 subsequent rebate, might constitute an unlawful 
 departiire from the schedule rate. But I am of the 
 opinion that, where a series of acts, otherwise 
 lawful, are made unlawful by a single subsequent 
 transaction, the government may elect to treat 
 the whole series as one transaction. Any other 
 rule would put it in the power of the carrier by 
 the payment of a single gross rebate to make it im- 
 possible to point out any single shipment to which 
 the rebate was applicable and thereby make a 
 prosecution impossible. * * * 
 
 "The objection that the indictment does not 
 state the day or days upon which the shipments 
 were made is, in my judgment, equally unsound. 
 The transaction, as it turned out, was a continu- 
 ing one until closed by the payment of the rebate, 
 and was at no time unlawful until the rebate was 
 paid. The payment of the rebate, as a single trans- 
 action, individualized the whole transaction to 
 
33 
 
 which it related as of that day. Each and all of 
 the shipmenl^s upon which the rebate was paid 
 may be regarded as a transaction closed upon the 
 date the rebate was paid, and it is sufficient to 
 state a transaction as of the day it was closed. 
 Neither is it necessary to charge that, when the 
 shipments were made, it was intended to demand 
 and receive a less rate than the schedule rate, and 
 that the subsequent rebate was only the actual car- 
 rying out of such intention. The parties may 
 not have intended to violate the law when the 
 shipment was made, but are none the less guilty 
 if, by any subsequent conduct fairly connected 
 therewith, they compassed the result which the 
 law prohibited. The offense is, at most, malum 
 prohibitum,, and the point of inquiry is, not so 
 much whether there was a preceding and accom- 
 panying intent, as what was the practical outcome 
 of the defendants' acts!" 
 
 Thus it was held by the present presiding judge that 
 only the government's election prevented the number 
 of shipments constituting the number of offenses. In 
 the present case the government elected to treat each 
 shipment as a separate offense. 
 
 Under the rule laid down in the opinion would there 
 ever be an offense where the carrier unlawfully grant-' 
 ed free transportation and there was never any settle- 
 ment of the account'? And is there not always a lia- 
 bility on the part of the shipper to pay the difference 
 between the lawful and the unlawful rate, and to that 
 extent is not the "door of repentance" referred to in 
 the opinion, always open until such a suit is barred by 
 the statute of limitations — a time when a criminal 
 prosecution would also be barred'? Free transporta- 
 tion for a favored shipper would be discrimination 
 
34 
 
 pushed lo its extreme. For sucli discrimination this 
 court holds there is no penalty. 
 
 Again take the case of a number of shipments, some 
 interstate and some w^rastate, some passing between 
 points in the same district and some through two or 
 more districts, all finally settled for at one time. Is 
 it possible to give meaning to all of the portions of 
 the statute, particularly the one above referred to re- 
 lating to jurisdiction, and not hold that each inter- 
 state shipment is the basis of a distinct offense? 
 
 The error of this court, it seems to us, is in treating 
 the acceptance of the check or money for the freight of 
 a large number of cars, treated separately in their 
 shipment, but paid for by one check, as the gist of the 
 offense. The offense as defined by the statute is the 
 granting of a "concession *- * * in respect to the 
 transportation of any property whereby * * * 
 any such property shall by any device whatever be 
 transported at less than the rate named in the tar- 
 iffs;" the offense being the transportation at less 
 than the tariff rates; and it makes no difference what 
 the form of the concession was. Now in the trans- 
 portation all parties treated the car load as the unit 
 or single shipment. So it was treated in making the 
 tariffs, in rendering bills, in figuring the amount of 
 the transportation; and the only basis for the opinion 
 of this court is the fact that one check was given for 
 the freight on a large number of cars. If it is pos- 
 sible to evade the large penalties intended to stop 
 concessions of this kind by giving one check at the 
 end of one year, or two years, although covering thou- 
 sands of car loads shipped to all parts of the country, 
 
35 
 
 and on different tariffs, and for different rates, then 
 the evasion of this act is very simple. 
 
 Suppose, for instance, a large number of car loads 
 had been shipped to different parts of the United 
 States, and no rate whatever charged. In that case 
 there would never be a settlement or a payment. 
 Under the ruling of the court there would evidently 
 be no offense. Suppose that the shipper brought into 
 the office of the railroad company the money covering 
 the freight on each car separately. It is manifest that 
 even under the ruling of this court there would be one 
 offense for each shipment. Suppose again that the 
 money for the freight on the different cars was 
 brought in at the same time, and yet paid to the rail- 
 road company in separate amounts. It is still mani- 
 fest that there would be one offense for each ship- 
 ment. Can it make any possible difference in the ap- 
 plication of the statute, that the money for the freight 
 on all of the cars is brought in and put down on the 
 counter in one pile, or that the freight is covered by a 
 single check? The fact remains that each car load 
 was treated as a separate shipment in all the trans- 
 actions between the railway and the Standard Oil 
 Company, in the loading, in the rates, in the tariffs, 
 in the hauling, in the billing, and in the bills rendered 
 for the freight, and if there could ever be a separate 
 offense, the car load was the offense. 
 
 There is language in the opinion which would in- 
 dicate that the court has overlooked an important item 
 of proof on the part of the Government. If the lang- 
 uage in the opinion of the court on this subject is in- 
 terpreted to mean that each shipment as affected by 
 
36 
 
 the subsequent settlement, to use the language in the 
 Ilanley case, constituted a distinct offense, then we 
 respectfully submit that under the evidence each car 
 was a distinct shipment. 
 
 It is said in the opinion that the plaintiff in error 
 was convicted of "as many offenses as there were 
 car loads, although each car load was in some in- 
 stances but one only, in a number of car loads that 
 made up the shipment." 
 
 We submit that this case was tried by the defend- 
 ant in the lower court upon the theory that if the of- 
 fense was not a continuous one or if the number of 
 offenses was not limited to the thirty-six settlements 
 for freight, then the transportation of each car load 
 was a distinct transaction. The point that there were 
 more than one carload in any shipment was never 
 raised before the submission of the case to 
 the jury, and in the argument of the motion for 
 a new trial the plaintiff in error committed itself to 
 the position that these different car loads could not 
 be grouped into a smaller number of shipments. The 
 fact is that in the transactions relating to the settle- 
 ment for this freight, as well as in the handling of the 
 cars, each car was recognized as a separate item. 
 There is absolutely no evidence in the record that these 
 cars were transported in train loads, or that any of 
 them, in the handling of the cars, were so grouped 
 together as to make of them one shipment. 
 
 If, however, the court should hold (a holding which 
 we think cannot be sustained in view of the other evi- 
 dence as to the dealings between the parties, treating 
 the shipment of each car as a distinct transaction) that 
 
37 
 
 the placing of the numbers of several cars on the same 
 shipping directions, made one shipment of those cars, 
 there would be, on that account alone, no necessity for 
 a re-trial of the case. The error, if any, is one after 
 verdict, which may be corrected by appropriate order, 
 either by the reviewing court here or by the trial court 
 upon the remanding of the case. 
 
 As to the last question discussed in the opinion, the 
 abuse of discretion by the trial judge, we respectfully 
 submit that this court has done an injustice to the trial 
 judge which the reargument requested will enable it 
 to repair in accordance with its undoubted wishes. 
 
 It is said that the sentence was not imposed on the 
 basis of facts respecting the defendant before the court, 
 but was imposed because of other facts wholly outside 
 of the record, and that the fine was imposed in an effort 
 to reach and punish a party not before the court. The 
 justification for this criticism of the trial judge is 
 summed up in the opinion of this court as follows: 
 
 "Briefly stated, the reason of the trial court for 
 imposing this sentence was because, after convic- 
 tion and before sentence, it was brought out, on 
 an examination of some of the officers and stock- 
 holders of the Standard Oil Company of New Jerr 
 sey, that the capital stock of the Standard Oil Com- 
 pany of Indiana, the defendant before the court, 
 was principally owned by the New Jersey corpo- 
 ration, a corporation not before the court — the 
 trial court adding (upon no evidence, however ,_ to 
 be found in the record, and upon no information 
 specifically referred to), that in concessions of the 
 character for which the defendant before the court 
 had been indicted, and convicted, the New Jersey 
 corporation was not a 'virgin' offender." 
 
 In this connection we respectfully call the attention 
 
38 
 
 of the court to the exact language of the trial judge at 
 
 the time of the imposition of the penalty : 
 
 "Of course, on the trial of a defendant for a spe- 
 cific offense, this presumption is indulged in favor 
 of that defendant as to that offense, but where, as 
 in this case, the crime charged was the acceptance 
 of a preferential railroad rate, in violation of a 
 law that had been on the books for nearly twenty 
 years ; where during a period of eighteen months 
 1900 car loads of property were shipped at an un- 
 lawful rate, which amounted to but one-third of 
 the rate available to the general shipping public; 
 where the convicted defendant's transportation af- 
 fairs were in the charge of an expert traffic official 
 of at least ordinary intelligence and many years 
 railroad traffic experience, and who was a fre- 
 quent visitor at the general freight office of the 
 railway company; where the unlawful rate was 
 shown only bj' a paper appearing on its face to be 
 special billing order, and which directed that settle- 
 ment for services rendered at the rate which it au- 
 thorized should be made through the railroad com- 
 pany's auditor's office instead of at the railway 
 station or freight office, as is done by the general 
 shipping public; and where the defendant, when 
 brought to trial persistently maintains that the 
 Constitution of the United States guarantees to it 
 the right to make a private contract for a railroad 
 rate, this court is obliged to confess that he is un- 
 able to indulge the presumption that in this case 
 the defendant was convicted of its virgin offense." 
 
 It will thus be seen that the language referred to in 
 the opinion of this court was used not with reference to 
 the Standard Oil Company of New Jersey, but with ref- 
 erence to the convicted defendant, the Standard Oil 
 Company of Indiana. 
 
 Just what was done by the trial judge in connection 
 with the imposition of the penalty which this court 
 
39 
 
 has construed to amount to a punishment of a party 
 who has not been tried, and which is held to amount to 
 a violation of the fundamental guaranty that no one 
 shall be punished until he has been heard? The trial 
 judge did that which is done in every criminal case 
 where the law gives the court a discretion as to the 
 punishment — that which is done in the Federal courts 
 every time a defendant is before the court for sen- 
 tence for robbing the mails or counterfeiting the coin. 
 He sought to inform himself as to who the defendant 
 was; as to whether the crime committed embraced 
 more of wickedness than the indictment charged; or, 
 whether, on the other hand, there were circumstances 
 of mitigation. It was not necessary that, in the exer- 
 cise of the discretion which the law gave to him, he 
 should have confined himself to that which was in the 
 record before the verdict of guilty. It was his right, 
 as it was his duty, to look into everything which would 
 aid him in exercising that discretion. Far from being 
 " a strange doctrine in Anglo-Saxon jurisprudence" 
 this rule of procedure is one pointed out by Mr. Bishop 
 in his work on criminal law (Vol. 1, Sees. 948, 950) 
 as one of the elementary principles of that jurispru- 
 dence recognized from the earliest days. Because a 
 judge considers the relation of the convicted defendant 
 to any other person or concern for whose advantage 
 the crime was committed, there is no condemnation of 
 anyone who has not had his day in court. 
 
 Take the ease of the man who has stolen from a bank 
 and who is ,bef ore the court for sentence. If the judge, 
 in determining the amount of punishment to be in- 
 flicted on the defendant takes into consideration the 
 fact that the crime was committed for the benefit of the 
 
40 
 
 defendant's employer, is it to be said that punishment 
 has been inflicted without due trial under all of the 
 forms of law? 
 
 It is true that it was disclosed to the trial judge that 
 the Standard Oil 'Company of Indiana was owned and 
 controlled absolutely by the Standard Oil Company of 
 New Jersey, and looking through the form of corporate 
 organization, it was essentially a part of the Standard 
 Oil Company of New Jersey; but we appeal to the 
 record in support of the assertion that throughout the 
 entire proceeding there was no pretense that sentence 
 was being imposed or that punishment was being in- 
 flicted upon the Standard Oil Company of New Jersey. 
 Throughout these proceedings the Standard Oil Com- 
 pany of Indiana was treated as the defendant in the 
 case and every inquiry as to its relation with the other 
 company was for the purpose obtaining information 
 relating to the character of the defendant which it was 
 right and proper that the judge should have. 
 
 And what is to be said as to the principle that so 
 long as the tria,l judge confines himself to the limits 
 prescribed by the legislative branch of the govern- 
 ment, the extent of the sentence is within the discre- 
 tion of the court? Is this court to be understood as 
 announcing the rule that in case it does not agree with 
 the trial. judge as to the amount of punishment which 
 should have been imposed, the sentence will be reversed 
 on the ground that it was an abuse of judicial discre- 
 tion? 
 
 There is another portion of the opinion to which we 
 respectfully direct the attention of the court for the 
 reason that it involves what we submit is an erron- 
 eous view of the law. The proposition is concretely 
 stated as follows: "Would a cab driver, convicted 
 
41 
 
 of violating the city law against excessive cab fares, be 
 sentenced to pay a fine that would take his horse and 
 cab, and then leave him a bankrupt naany times over, 
 unable to pay anything but the least proportion of his 
 debts to his other creditors?" 
 
 Is the court to be understood as holding that the 
 amount of the fine which may be imposed in a crim- 
 inal case is limited by the ability of the defendant to 
 pay? Take the case stated in the opinion. Suppose 
 the cab driver had committed one hundred violations 
 of the law and the minimum punishment prescribed by 
 the statute would produce the result stated in the 
 opinion of wiping out all of his property and bringing 
 him to a condition of bankruptcy, must the trial judge 
 refuse to impose punishment or else inflict a penalty 
 for which there is no warrant in law? 
 
 Every day defendants are fined many times more 
 than the value of all the property they possess. Sup- 
 pose this defendant had one hundred dollars worth of 
 property but had committed violations of law for 
 which, under a valid statute, a penalty of twenty-nine 
 hundred dollars was imposed. Is the principle differ- 
 ent because the amount involved is measured by hun- 
 dreds of dollars in one case and by millions in the 
 other? , 
 
 Again in discussing the amount of the fine, it is 
 stated: "The capital stock of this corporation is one 
 million dollars. There is nothing in the record, in 
 the way of evidence, either before conviction or after 
 conviction and before sentence, that shows that the 
 assets of this corporation were in excess of one mil- 
 lion dollars." 
 
 Speaking of the effect of a fine upon the creditors 
 
42 
 
 of the plaintiff in error, however, the court continued : 
 "Put into execution, this maximum sentence would 
 add to the liabilities of defendant to its creditors (and, 
 according to a petition of the government on the mat- 
 ter of supersedeas there were current liabilities of 
 from three to five million dollars) an additional lia- 
 bility of twenty-nine million two hundred and forty 
 thousand dollars." 
 
 Is it unfair to inquire why, if the information in the 
 petition is before the court for one purpose in con- 
 nection with the effect of this penalty, it is not before 
 the court for all purposes in the same connection ? Why 
 if a part of the information in this petition is used to 
 destroy the judgment of the lower court may not the 
 other part be invoked to preserve it? And it appears 
 from the very petition to which this court in its opin- 
 ion has made reference, that the assets of the plaintiff 
 in error, the Standard Oil Company of Indiana, in 
 the year 1906, the year in which tlie indictment in 
 this case was returned, amounted, according to its own 
 figures, to $27,502,089.86 and that the profits of its 
 business for the years 1903, 1904, 1905 and 1906 
 amounted to $33,583,208.80.* 
 
 *Ii3 the report of the Standard Oil Company of Indiana to the Stand- 
 ard Oil Company of New Jersey (See petition filed in this court January 
 7, 1908) it is stated that its gross assets, liabiHties and profits from 1899 
 to 1906 inclusive, were as follows : 
 
 "Standard Oil Co. (Indiana). 
 
 Year Gross Assets Liabilities Profits. 
 
 1899 
 
 15,154,408.16 
 
 5,004,831.05 
 
 4,195,750.54 
 
 1900 
 
 16,077,018.24 
 
 2,735,695.09 
 
 4,981,571.04 
 
 1901 
 
 16,435,313.71 
 
 2,963,417.01 
 
 5,379,948.55 
 
 1903 
 
 19,794,673.94 
 
 3,306,530.64 
 
 7,515,906.60 
 
 1903 
 
 21,377,619.70 
 
 4,535,306.13 
 
 8,753,410.38 
 
 1904 
 
 30,087,700.64 
 
 3,053,497.83 
 
 7,793,039.34 
 
 1905 
 
 30,743,361.97 
 
 3,435,957.63 
 
 6,521,676.53 
 
 1906 
 
 37,503,089.86 
 
 3,178,153.76 
 
 10,516,082.75' 
 
43 
 
 It may be that the trial judge did not have this 
 information before him at the time he pronounced 
 sentence, but is his judgment to be set aside for the 
 reason that facts necessarily within the knowledge of 
 the defendant were not submitted to him, when those 
 facts, if known, would have furnished, under the view 
 announced by this court, an additional reason for do- 
 ing precisely what he did? 
 
 In exercising his discretion the trial Judge is not 
 limited to what is in the record prior to the verdict of 
 guilty. If this court may substitute its discretion for 
 that of the trial judge then it will certainly in exer- 
 cising its discretion consider those things which would 
 have been proper for the trial judge to have consid- 
 ered. This court has treated this information as 
 properly before it for one purpose, namely, for the 
 purpose of determining the amount of the liabilities 
 of the plaintiff in error, and has held that fact proper to 
 be considered in determining whether or not the fine is 
 excessive. Why then is it not proper to consider all 
 the facts which are now before this court, and in the 
 light of those facts to determine whether the punish- 
 ment is so excessive as to amount to an abuse of the 
 discretion of the trial judge. 
 
 With reference to the amount of this fine we beg to 
 repeat what was said in our brief : 
 
 "A letter carrier abstracts a letter from the 
 mails ; he forfeits as the smallest penalty permis- 
 sible, his liberty and his earning capacity for a 
 year. Is the penalty extreme! A bank officer mis- 
 applies the funds of his bank. The law, as the 
 least punishment which can be inflicted, takes away 
 from him and his family, his liberty and his earn- 
 ing capacity for five years. Is the punishment 
 
44 
 
 excessive? And can it be said, in view of all the 
 circumstances of this case, in view of the relation 
 of the penalty to the enforcement of the important 
 law involved, that a punishment is excessive which, 
 according to the statement of the plaintiff in er- 
 ror as it appears in the record of this case in this 
 court, takes away from this offender, the Stand- 
 ard Oil Co. of Indiana, on the basis of its own net 
 earnings for the year in which the indictment was 
 returned, not its liberty, not even its earning ca- 
 pacity, but the profits of its business for less than 
 three years?' 
 
 And in this same connection we would call the at- 
 tention of the Court again to the other considerations 
 pointed out in our brief which it seems to us must 
 carry weight in passing upon the excessiveness of this 
 fine. We said: 
 
 "The plaintiff in error had been found guilty of 
 fourteen hundred and sixty-two distinct violations 
 of the law. The situation was precisely the same 
 as if each count had constituted a separate indict- 
 ment and there had been fourteen hundred and 
 sixty- two separate trials and convictions. 'Each 
 count is in fact and theorv a separate indictment. ' 
 (Selvester v. U. S., 170 U. S., 262, 267.) 
 
 "Nor is the question which is fundamentally 
 presented changed because the same offender is 
 guilty of all the violations of the law. Through 
 the very practices at which the Elkins Act was 
 aimed one great corporation had crushed out com- 
 petition and destroyed its rivals to such an extent 
 that its counsel proclaimed as one of the 'funda- 
 mental facts' in the case (Bee. 860) that its re- 
 finery was the only refinery in the Chicago district 
 and it was the 'only shipper of oil between Chica- 
 go and any of these common points to any point in 
 the country, St. Louis or any other place.' May 
 a concern, which through corporate organiza- 
 zation and railroad favoritism has established a 
 gigantic monopoly in a territory with a popula- 
 
45 
 
 tion of millions and concentrated a business many 
 thousand times as large as that carried on by 
 the ordinary citizen, plead in mitigation of pun- 
 ishment when called to account for its violations 
 of the law, that the number of offenses which it 
 has committed and for which it is required to an- 
 swer, has been in proportion to the magnitude of 
 its business? 
 
 ' ' The great corporation claims the benefit of the 
 same presumptions, the same rules of evidence, 
 the same methods of procedure in the courts, as 
 are applied to the individual ; it must also take the 
 burden which comes from doing that which, with- 
 out the artificial personality with which the law 
 invests it, would be done by many thousand in- 
 dividuals. 
 
 "Is the penalty prescribed by the Elkins Act un- 
 reasonably severe for a single offense! Of course, 
 if it is, then the entire provision falls as uncon- 
 stitutional; and it seems strange that, with a de- 
 fect so palpable, the Act should have been re- 
 peatedly pronounced constitutional by the Su- 
 preme Court. If the penalty is not unreason- 
 ably severe, then it becomes the duty of the trial 
 judge, in his discretion, to impose it for each of- 
 fense proved before him, taking into consideration 
 in apportioning the punishment, its effect, not 
 only upon the particular violator, but upon the 
 community and the nation and its relation to the 
 whole problem of the efficient enforcement of the 
 law." 
 
 If, however, the court should decline to reopen this 
 branch of the case, and adheres to its view that the 
 fine is so far excessive as to amount to an abuse of dis- 
 cretion, we suggest that the error in the amount of the 
 fine if the court, upon reconsideration should conclude 
 that there is no reversible error in the record before 
 the verdict of guilty, is one which does not necessitate 
 a retrial of the ease. 
 
46 
 
 In Whitworth v. U. S., 114 Fed. Eep., 302, 305, Cir- 
 cuit Judge Sanborn, speaking for the court, stating 
 the provisions of the statute and the authorities said: 
 "Where error is discovered in the proceedings in a 
 criminal case properly presented to a Circuit Court of 
 Appeals for review, it is empowered to enter such judg- 
 ment and to impose such sentence as the law prescribes, 
 or to reverse the judgment and direct the court below 
 to take such further proceedings as the justice of the 
 case may require." To the same effect is the ease of 
 Hanley v. U. S., 123 Fed. Eep., 849-854. 
 
 If this court, therefore, adheres to its view that the 
 punishment inflicted amounted to an abuse of discre- 
 tion and the judgment must be reversed, still it is not 
 necessary, for that reason alone, to subject the parties 
 to additional expense and to further delay in the pro- 
 ceedings. This court may in that case itself name the 
 fine which, in its opinion, is proper. 
 
 It is, therefore respectfully submitted: 
 That the opinion of this court is based upon a mis- 
 conception of the record with reference to the rulings 
 of the trial judge as to the admission of evidence 
 tending to show want of knowledge and with, reference 
 to his construction of the statute on that subject and 
 the theory on which the case was tried; that the evi- 
 dence of Bogardus, which it is claimed showed want 
 of knowlpdge, was admitted; that it was overcome, 
 however, by the facts and circumstances of the case; 
 and that the evidence as an entirety was sufficient to 
 show actual knowledge or what in law was its equiva- 
 lent; 
 
 That the interpretation of the statute by this court 
 
47 
 
 imposing no duty on the shipper and permitting a de- 
 fense of ignorance to be made without regard to the 
 negligence of the shipper, is contrary to the language 
 of the statute and to its purpose, and seriously im- 
 pairs the efficiency of the act; 
 
 That the ruling stated in the opinion as to the basis 
 for determining the number of offenses involves an 
 erroneous construction of the statute and fails to take 
 into consideration that- the thing wliich is prohibited 
 by the Act is the transportation of property at the 
 unlawful rate; 
 
 That the criticism of the trial judge for abuse of 
 discretion rests upon a wrong assumption of what the 
 trial judge actually did and assumes that he attempted 
 to try and punish the Standard Oil Company of New 
 Jersey, when, in fact, as appears from the record, the 
 entire proceedings were directed against the defend- 
 ant, the Standard Oil Company of Indiana; 
 
 That the ruling stated in the opinion to the effect 
 that a. fine is excessive when it exceeds in amount the 
 ability of the defendant to pay is an innovation in 
 criminal law, and if generally applied would prevent 
 the practical enforcement of most criminal statutes ; 
 
 That, in short, the opinion as it stands erroneously 
 states material portions of the record; does injustice 
 to the trial judge; leaves doubtful, in a new trial, the 
 rule of law to be applied both as to knowledge on the 
 part of the shipper and as to the number of offenses; 
 appears to be in conflict with the language of the Su- 
 preme Court and with the previous language of the 
 Presiding Judge of this court and with the great 
 weight of legal authority; and if permitted to remain 
 
48 
 
 unmodified will tend to encourage disol)edience to law, 
 to impede the enforcement of salutary statutes and 
 largely to defeat their purpose. 
 
 For the reasons stated we respectfully request that 
 a reargument of this case be granted. 
 
 Chaeles J. Bonaparte, 
 
 Attorney General, 
 
 Frank B. Kellogg, 
 Special Assistant to the Attorney General. 
 
 Edwin W. Sims, 
 
 United States Attorney, 
 
 James H. Wilkerson, 
 Special Assistant United States Attorney. 
 
HD 2780 S7 U58 
 
 Author 
 
 Title 
 
 US Bureau of Corpor a t .i on s 
 
 Vol. 
 
 Copy 
 
 Statement of the f:nmim'RRinnPT» 
 
 Of 
 
 Jorporations 
 
 Date 
 
 Borrower's Name